UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Form  L-l 

3x 

Q»\.\\ 


Form  L-9 


CONFLICT  OF  LAWS 


By 

UNIVER 

Lt£; 
1LO6  ANGELES,  CALIF. 

JOHN  P.  TIERNAN 

Peofessor  of  Law 

University  of  Notee  Dame 


'"  ft  Q  0 

CALLAGHAN  &  COMPANY 
CHICAGO 


v 


Copyright,  1921 

BY 

Caxlaghan  &  Company 


DEDICATION. 


TO 
MY   BROTHER 

J.  Harry  Tiernan, 

WHOSE   CAREER   UPON    THE 
BENCH   OF   NEW   YORK    STATE 
HAS   BEEN  A  BRILLIANT  ACHIEVE- 
MENT   IN    THE    PUBLIC    SERVICE,    AND 
WHOSE   LIFE    IS   A    NOBLE   LESSON 
IN   DEVOTION    TO    FAMILY,   LOY- 
ALTY TO  COUNTRY,  AND  FIDEL- 
ILTY  TO   THE   CHURCH. 
THIS  VOLUME  IS 
AFFECTIONATELY 
DEDICATED. 


PREFACE. 


There  are  three  general  systems  of  legal  instruction  in 
use  in  American  Law  Schools — the  lecture,  the  case,  and 
the  text  method.  Regardless  of  the  relative  superiority 
of  one  to  the  others,  the  author  is  convinced,  after  seven 
years  teaching  experience,  that  no  one  of  these  methods 
alone  is  adequate  to  sound,  thorough  instruction  in  the 
law.  In  his  presentation  of  this  difficult  subject  in  the 
class-room,  he  has  produced  satisfactory  results  only  by 
a  combination  of  text,  cases,  and  lecture  in  proper  pro- 
portion.   The  value  of  a  text  in  stating  the  principles  of 

^  the  law  in  brief  form  can  not  be  denied.  The  necessity 
of  reading  leading  decisions  that  support  and  apply 
those  principles  is  indisputable.  And  finally,  there  is  the 
general  discussion  in  class;  the  Instructor  when  neces- 

j  sary,  expounding  the  subject,  imparting  the  benefits  of 

his  knowledge  and  experience  and  observation,  thereby 
arousing  and  sustaining  interest  in  the  work;  these  are 
the  things  that  elevate  instruction  from  the  mechanical 
to  the  intellectual. 

In  presenting  this  text  therefore,  the  author  makes  no 
*■  defense.  He  has  embodied  the  fundamentals  of  the  sub- 
ject in  the  text  in  simple  form.  He  has  scrupulously 
selected  the  leading  decisions  and  included  them  in  the 
notes,  where  they  are  identified  by  large  conspicuous  cita- 
tion. Finally,  instead  of  merely  stating  the  law,  he  has 
by  clear  simple  language  explained  it,  so  as  to  reproduce, 
as  far  as  possible,  the  full  value  of  the  class  instruction. 
It  is  this  very  feature,  it  is  believed,  that  will  commend 
it  for  Law  School  purposes  to  Instructor  and  class  alike. 
"While  hopeful  of  the  success  of  this,  his  first  literary 
effort,  the  author  is  nevertheless  humanly  conscious  that 
errors  will  be  found,  and  for  these  he  assumes  complete 
responsibility.    But  he  takes  this  opportunity  to  publicly 


VI 

acknowledge  his  gratitude  to  tlie  members  of  the  Fac- 
ulty, especially  Dean  Francis  J.  Vurpillat,  for  their  sin- 
cere moral  support,  and  to  the  students  of  law  in  the 
University  of  Notre  Dame  for  their  generous  sugges- 
tions during  its  preparation. 

John  P.  Tiernan". 

Notre  Dame,  Ind.,  Aug.  1,  1921. 


TABLE  OF  CONTENTS. 


Chapter  I   Comity 

Chapter  II Torts 

Chapter  III    Death  Actions 

Chapter  IV    Contracts 

Chapter  V    Remedies 

Chapter  VI  Interest  &  Usury 

Chapter  VII Sales  &  Chattel  Mortgages 

Chapter  VIII  Marriage 

Chapter  IX Legitimacy  &  Adoption 

Chapter  X    Wills 

Chapter  XI Crimes 

Chapter  XII Penal  Actions 


Vll 


COMITY 

CHAPTER  I 

Rule:  COMITY  IS  THE  ENFORCEMENT  BY  ONE  STATE  OF  A 
RIGHT  ACQUIRED  UNDER  THE  LAWS  OF  ANOTHER. 1 

Exception:  SUCH  A  RIGHT  IS  NOT  ENFORCIBLE  IF  ITS  EN- 
FORCEMENT WOULD  VIOLATE  LOCAL  PUBLIC  POLICY.2 

Sec.  1.  Explanation. — There  are  forty  eight  states  in 
the  American  Union.  Each  State  has  its  own  separate 
system  of  laws.  And  each  state  has  its  own  separate 
territory  within  the  limits  of  which  those  laws  operate. 
That  is,  the  laws  of  a  state  are  local.  They  do  not  op- 
erate exterritorially  in  other  states.  Hence,  if  the  laws 
of  a,  state  confer  a  right  on  a  party,  he  can  constitution- 
ally enforce  it  only  within  the  limits  of  that  particular 
state.  He  can  not  go  into  another  state  therefore,  and 
demand  that  it  enforce  his  right,  since  all  laws  and  the 
rights  they  create  operate  locally,  and  are  not  entitled  to 
compulsory  enforcement  in  other  states  of  the  Union. 

Now,  while  it  is  true  that  one  state  is  not  bound  to 
enforce  a  right  acquired  by  the  laws  of  another,  it  is  on 
the  other  hand  true  that  a  state  can  waive  its  own  sov- 
ereignty. That  is,  a  state  can,  and  generally  does  en- 
force, on  the  principle  of  Comity,  a  right  acquired  by  a 
party  under  the  laws  of  a  sister  state.  But,  as  we  have 
seen,  this  sovereign  act  of  comity  is  not  a  constitutional 
obligation  of  the  state.  It  is  a  mere  act  of  courtesy. 
In  fact,  a  state  can,  if  it  deems  it  expedient,  absolutely 
refuse  to  enforce  any  right  owing  its  origin  to  the  laws 
of  a  neighboring  state.     But  the  general  policy  of  the 

1— FARMERS  &  MERCHANTS  vs.  Guyot  159  U.  S.  113,  16  S.  CL 
BANK  VS.  SUTHERLIN  93  NEB.       R.  139. 

707,  141  N.  W.  827.     See:     Hilton  2— PENNEGAR  VS.  STATE  87 

TENN.  244,  10  S.  W.  305. 

(1) 


2  CONFLICT   OF   LAWS 

states,  however,  is  to  enforce  rights  conferred  on  a  party 
by  the  laws  of  another  jurisdiction.  Hence,  Comity  is  a 
principle  that  primarily  aids  such  a  party.  It  enables 
him  to  obtain  access  to  our  courts  and  the  process  of 
our  laws  to  redress  a  grievance.  On  the  contrary,  if  the 
state  refused  to  apply  the  principle  of  Comity  in  his 
behalf,  his  right  being  local,  would  have  to  be  enforced 
in  his  own  state;  it  would  cease  to  be  enforcible  when 
he  came  into  our  state;  and  he  being  without  remedy,  our 
courts  would  be  a  party  to  injustice,  rather  than  a  dis- 
penser of  justice  to  all  alike. 

Nor  is  that  all.  Comity  has  an  extensive  operation. 
Under  its  principles  all  rights  of  a  foreign  origin  are 
enforced.  In  short,  its  complete  scope  is  the  whole  field 
of  legal  rights,  derived  directly  or  indirectly  from  the 
laws  of  a  state.  It  enforces  rights  in  tort.  It  enforces 
obligations  in  contract.  It  makes  no  distinction  between 
a  right  based  on  the  rules  of  the  common  law  or  a  right 
owing  its  origin  to  a  statute.  It  even  recognizes  do- 
mestic relations,  such  as  a  marriage  solemnized  under 
the  laws  of  another  state,  and  thereby  in  a  direct  way, 
the  state  preserves  its  own  social  stability.  So  there- 
fore, the  dominating  principle  of  the  CONFLICT  OF 
LAWS  is  Comity,  whereby  the  state  assists  a  party  by 
enforcing  a  right  he  has  acquired  in  another  state.  In 
that  way,  it  not  only  aids  him  ,  but  by  doing  so,  builds  up 
its  own  commercial  and  social  welfare  and  advances  the 
cause  of  justice  generally. 

Sec.  2.  Tn  the  foregoing  discussion,  it  was  shown  that 
on  principles  of  interstate  courtesy,  a  right  acquired 
under  the  laws  of  one  state  is  generally  enforcible  in 
another  state.  There  is  however,  an  exception  to  this 
general  rule.  In  fact,  the  exception  is  more  important 
than  the  rule,  because  the  exception  is  based  generally 
on  moral  grounds.  That  is,  a  state  will  not  enforce  a 
right  acquired  under  the  laws  of  another,  if  to  do  so 
would  violate  its  own  public  policy.  All  states  waive 
their   sovereignty  when  it  is   expedient  to  do   so,   but 


COMITY  6 

no  state  will  waive  its  sovereignty,  when  public  policy  is 
involved.  So  it  is  then,  that  if  the  application  of  the 
general  rule  of  Comity  will  violate  the  public  policy  of 
a  state,  that  state  can  and  will  refuse  to  enforce  a  right 
under  those  exceptional  circumstances. 

The  question  now  arises,  how  is  public  policy  deter- 
mined? Considered  negatively,  the  mere  fact  that  there 
is  a  difference  between  the  laws  of  two  states  does  not 
prove  a  difference  in  public  policy.  There  is  always  a 
difference  between  the  laws  of  two  states.  In  some  cases 
that  difference  is  material.  But  regardless  of  its  extent, 
there  is  always  a  diversity  in  the  laws  of  our  states,  altho 
there  is  not  necessarily  any  difference  in  their  public 
policy.  If  a  difference  in  law  established  a  difference  in 
policy,  the  exception  would  be  the  general  rule,  and  the 
doctrine  of  Comity  would  not  exist.  Our  conclusion 
therefore  is,  that  the  test  of  the  public  policy  of  a  state 
is  not  to  be  found  merely  in  the  fact  that  the  laws  of  one 
state  differ  from  the  laws  of  another. 

Well,  then  how  is  public  policy  determined?  The  au- 
thor believes  that  it  is  rather  a  moral  than  a  legal  ques- 
tion. If  a  right  sought  to  be  enforced,  in  other  words, 
involves  a  violation  of  the  moral  principles  of  a  state,  it 
violates  its  public  policy.  Of  course,  the  moral  prin- 
ciples of  a  state  are  those  that  are  deduced  from  its  laws, 
but  whether  those  laws  resemble  or  differ  from  those  in 
the  state  where  the  right  arose,  is  not  the  material  in- 
quiry. The  only  question  therefore  is,  whether  the  right 
is  one  that  is  contrary  to  the  moral  standards  of  the 
state.  This  moral  basis  of  public  policy  can  be  illustrated 
by  a  leading  case  in  the  law  of  marriage,  Pennegar  v. 
State,  87  Tenn.  244,  10  S.  W.  305.  In  that  case,  Tennes- 
see had  a  statute  that  prohibited  the  remarriage  of  the 
guilty  party  to  a  divorce.  A  resident  of  the  state,  desir- 
ing to  remarry  after  a  divorce,  and  intending  to  evade 
the  statute,  withdrew  from  the  state  and  was  married  in 
Alabama.  On  his  return  to  Tennessee  he  was  tried  for 
criminal  cohabitation.  The  Court  held  he  was  guilty.  It 
refused  to  recognize  as  valid,  a  marriage  solemnized  un- 


4  CONFLICT  OF  LAWS 

der  the  Alabama  laws,  because  to  uphold  it  would  be  in 
violation  of  its  own  local  public  policy.  The  court  placed 
its  decision  in  the  case  on  moral  grounds  entirely.  It 
said:  "Each  state  or  nation  has  ultimately  to  deter- 
mine for  itself  what  statutory  inhibitions  are  intended 
to  be  imperative,  as  indicative  of  the  decided  policy  of 
the  state  concerning  the  morals  and  good  order  of  so- 
ciety *  *  *  if  the  statutory  prohibition  is  expressive 
of  a  decided  state  policy  as  a  matter  of  morals,  the 
courts  must  adjudge  the  marriage  void  here  as  contra 
bonos  mores." 

This  case  sustains  and  illustrates  our  principles.  In 
this  case,  the  laws  of  Alabama  and  Tennessee  were  mate- 
rially different.  That  is,  the  laws  of  one  state  prohib- 
ited the  remarriage,  while  the  laws  of  the  other  allowed 
it.  But,  that  difference  standing  alone,  did  not  establish 
a  difference  in  the  public  policy  of  these  two  states.  On 
the  other  hand,  since  the  law  involved  a  question  of 
morality;  since  the  purpose  of  the  law  was  to  preserve 
the  public  morality  of  the  state  of  Tennessee;  its  basis 
was  morality  and  not  merely  expediency.  Hence,  since 
the  marriage  celebrated  in  Alabama,  though  valid  there, 
on  moral  grounds  violated  the  public  policy  of  Tennes- 
see, the  Tennessee  court  refused  it  recognition. 

We  have  discussed  the  general  principle  of  Comity  and 
its  very  vital  exception.  In  the  ensuing  chapters  we 
shall  explain  the  application  of  the  principle  and  its  ex- 
ception to  the  leading  subjects  of  the  law. 


TORTS 

CHAPTER  n 

Rule:  A  TORT  ACTION  IS  LOCAL  IF  ITS  PURPOSE  IS  TO 
DETERMINE  TITLE  TO  REAL  PROPERTY;  IN  ALL  OTHER 
CASES  IT  IS  TRANSITORY.l 

Rule:  A  LOCAL  ACTION  MUST  BE  BROUGHT  IN  THE  STATE 
WHERE  SUCH  PROPERTY  IS  LOCATED;  BUT  A  TRANSITORY 
ACTION  CAN  BE  BROUGHT  IN  ANY  STATE.2 

Rule:  THE  RIGHTS  OF  THE  PARTIES  TO  A  TRANSITORY  AC- 
TION ARE  GOVERNED  BY  LAW  OF  THE  STATE  WHERE  IT 
AROSE.3 

Rule:  THE  REMEDIES  OF  THE  PARTIES,  HOWEVER,  ARE 
REGULATED  BY  LAW  OF  THE  STATE  WHERE  THE  ACTION  IS; 
BROUGHT.* 

Sec.  3.  Explanation.— In  the  CONFLICT  OF  LAWS 
tort  actions  are  classified  into  local  and  transitory.  An 
action  is  local  if  its  purpose  is  to  establish  rights  in  real 
property.  Hence,  if  A  sues  B  in  an  action  of  ejectment 
to  establish  title  to  real  property,  it  is  a  local  action, 
since  the  purpose  of  the  action  is  to  determine  their 
rights  in  the  property. 

l—IJTTLE   VS.   R.  R.    CO.,   65  3— BUCKLES  VS.  ELLERS,  72 

MINN.  48,  67  N.  W.  846;  Eingart-  IND.  220,   37  AM.  R.   156;    ALA- 

ner  vs.  111.  Steel  Co.,  94  Wis.  70,  BAMA    G.    S.    R.    CO.    VS.    CAR- 

68   N.    W.    664.  ROLL.  97  ALA.  126;   11  SO.  803; 

2— HERRICK  VS.  R.  R.  CO.,  31  Baltimore  &  O.    S.   W.   R.   R,   Co. 

MINN.  11,   16  N.  W.  413;    Little  vs.   Read,   158   Ind.    25,    62   N.   E. 

vs.  R.  R.  Co.,  65  Minn.  48,  67  N.  488;    See:     Brunswick  Term.  Co. 

W.  846;   Eingartner  vs.  111.   Steel  vs.  Bank,  40  C.  C.  A.  22,  99  Fed. 

Co.,    94    Wis.    70,   68    N.   W.    664;  635. 

Conant  vs.  Irrigation  Co.,  23  Utah  4— O'Shields   vs.   R.   R.   Co.,    83 

C27,  66  Pac.  188.     See:   Cooley  vs.  Ga.  621,  10  S.  E.  268;   B.  &  O.  R. 

Scarlett,  38  111.  316,  87  Am.  D.  298;  R.  Co.  vs.  Joy,  173  U.  S.   226,  19 

Burnley  vs.  Stevenson,  24  Oh.  St.  S.  Ct.  R.  387;  AUSTIN  VS.  R.  R. 

474,  15  Am.  R.  621;    Clement  vs.  CO.,   122  KY.  304,   91   S.   W.  742. 

Willett,  105  Minn.  267,  117  N.  W.  See:     Brunswick    Term.    Co.    vs. 

491#  Bank,  40  C.  C.  A.  22,  99  Fed.  635. 


0  CONFLICT  OF  LAWS 

But  that  is  not  all.  If  the  primary  purpose  of  the 
action  is  to  determine  the  title  of  the  parties  in  the  prop- 
erty, and  incidentally  the  party  suing  demands  a  money 
judgment,  it  is  also  a  local  action.  Hence,  if  A  sues  B 
in  an  action  of  ejectment,  and  demands  damages  for 
unlawful  detention  of  the  property,  it  is  a  local  action. 
In  this  case,  since  the  title  of  the  parties  to  the  property 
is  the  main  issue,  and  the  money  judgment  a  mere  in- 
cidental issue,  the  action  is  regarded  as  substantially 
local. 

Now,  there  is  a  clear  distinction  to  be  observed  be- 
tween local  and  transitory  actions.  We  have  seen  that 
an  action  is  local  if  its  only  or  principal  object  is  to 
decide  the  rights  of  parties  in  real  property.  But  on 
the  other  hand,  the  mere  fact  that  real  property  is  in- 
volved in  an  action,  does  not  make  it  local.  That  is,  if 
real  property  is  only  indirectly  involved,  it  is  not  a  local 
action.  In  other  words,  if  the  purpose  of  the  action  is 
to  recover  a  money  judgment  only,  it  is  a  transitory 
action.  Hence,  if  A  sues  B  to  recover  damages  for  a 
trespass  to  real  property,  it  is  a  transitory  action,  be- 
cause the  purpose  of  the  action  is  to  recover  a  money 
judgment,  although  real  property,  but  not  the  title  there- 
to, was  involved  in  the  action.  So  therefore,  our  con- 
clusion is,  that  whether  an  action  is  local  or  transitory, 
depends  on  the  purpose  of  the  action.  If  its  only  or 
principal  purpose  is  to  decide  the  title  of  the  parties 
in  the  real  property,  the  action  is  local.  In  all  other 
cases  it  is  transitory;  that  is,  the  action  is  transitory 
if  its  purpose  is  wholly  to  recover  compensation. 

Sec.  4.  Now,  the  important  distinction  between  local 
and  transitory  actions  in  the  CONFLICT  OF  LAWS  is, 
that  if  an  action  is,  under  the  foregoing  principles  local, 
it  must  be  brought  in  the  state  where  the  real  property 
is  located.  It  cannot  be  brought  in  any  other  state  under 
any  doctrine  of  Comity,  not  because  of  a  rule  of  public 
policy,  but  because  of  jurisdictional  principles.  This  is 
fundamental.     Real  property  is  inherently  and  perma- 


TORTS  7 

nently  stationary.  Tt  always  has  been,  and  always  will 
remain,  located  in  the  state  of  which  it  is  territorially 
and  legally  a  part.  And  the  laws  of  that  particular 
state  are  the  only  laws  nnder  which  the  title  of  parties 
in  that  property  can  be  determined.  Hence,  one  state 
cannot  sustain  an  action  to  decide  questions  of  title  to 
real  property  in  another  state.  It  could  not  entertain 
such  an  action  if  it  wanted  to,  under  any  doctrine  of 
Comity.  This  is  the  one  class  of  cases  to  which  the 
subject  of  Comity  does  not  apply.  Local  actions  must 
be  brought  in  the  state  where  the  property  is  situated, 
since  no  other  state  possesses  a  legal  jurisdiction  in  the 
premises. 

But  on  the  other  hand,  if  a  transitory  action  arises, 
under  the  rules  of  Comity  the  action  can  be  brought  in 
any  state.  Transitory  actions  are  brought  to  recover 
a  money  judgment.  That  is,  they  are  brought  not 
against  real  property  that  is  necessarily  stationary  and 
local,  but  against  a  person  who  is  likely  to  be  found  in 
any  state  and  therefore  subject  to  the  jurisdiction  of 
any  state.  So  therefore,  a  local  action  must  be  brought 
where  the  property  is  located,  because  that  is  the  only 
state  where  jurisdiction  can  be  acquired,  and  a  judg- 
ment rendered.  But  a  transitory  action  can  be  brought 
in  any  state  where  the  person  is  found,  and  being  in 
that  state,  he  can  be  served  with  process  and  jurisdiction 
thereby  be  acquired.  These  basic  principles  were  applied 
in  the  Minnesota  case  of  Herrick  v.  R.  R.  Co.,  31  Minn. 
11,  16  N.  W.  413  where  a  party  sued  for  personal  in- 
juries sustained  in  Iowa.  The  Court  held  the  action 
transitory  and  allowed  a  recovery.  It  said :  ' '  The  gen- 
eral rule  is  that  actions  for  personal  torts  are  transitory 
and  can  be  brought  wherever  the  wrongdoer  can  be  found 
and  jurisdiction  of  his  person  obtained.  That  liability, 
if  the  action  is  transitory,  can  be  enforced  and  the  right 
of  action  pursued  in  the  courts  of  any  state  which  can 
obtain  jurisdiction  of  the  defendant,  provided  it  is  not 
against  the  public  policy  of  the  laws  of  the  state  where 
it  is  sought  to  be  enforced.,, 


8  CONFLICT  OF  LAWS 

Sec.  5.  In  our  study  of  Torts,  we  recall  that  a  tort  is 
an  act  or  omission  in  violation  of  law,  that  injures  the 
person  or  property  of  another.  In  other  words,  to  con- 
stitute a  tort,  there  must  be  an  act  prohibited  by  the 
law  of  the  state  where  that  act  is  done.  If  the  act  that 
injured  a  person  or  property  is  nevertheless  not  pro- 
hibited by  the  law  of  the  state  where  the  act  is  done, 
there  is  no  tort,  regardless  of  the  actual  injury  caused 
in  any  case.  Now,  if  therefore,  under  the  laws  of  the 
state  where  the  act  is  done,  it  is  not  prohibited  and  is 
not  a  tort,  a  party  cannot  bring  an  action  on  the  basis 
of  such  an  act  in  another  state.  A  right  is  derived 
from  the  law  of  a  state.  If  that  law  creates  no  right 
there  is  none,  and  if  the  party  goes  to  another  state 
and  sues,  there  is  no  recovery  because  he  has  brought 
no  cause  of  action  with  him.  Hence,  whether  an  act 
is  or  is  not  a  tort  depends  on  the  law  of  the  state  where 
that  act  was  done. 

A  leading  case  in  which  these  principles  are  sustained 
is  Buckles  v.  Ellers,  72  Ind.  220,  37  Am.  R  156.  In  that 
case,  A  sued  B  for  seduction,  bringing  the  action  in 
Indiana.  The  acts  which  were  alleged  to  constitute  a 
tort  were  all  done  in  Illinois.  But  the  Illinois  law  did 
not  prohibit  those  acts,  or  make  them  a  tort.  The  Court 
therefore  held  that  there  was  no  recovery.  In  other 
words,  whether  an  act  is  a  tort  depends  on  the  law  of 
the  state  where  the  act  is  done.  And  if  it  is  not  a  tort 
there,  it  is  not  a  tort  in  any  other  state.  So  that,  since 
there  is  no  legal  right  involved,  there  is  no  cause  of 
action  under  the  principles  of  Comity. 

Sec.  6.  Now,  assuming  that  an  act  done  in  a  state  is 
by  its  laws  a  tort,  so  that  the  injured  party  therefore 
has  a  cause  of  action  which  he  can  generally  enforce 
in  any  state,  what  bearing  has  the  law  of  the  state 
where  the  action  is  brought,  on  the  case?  In  the  fore- 
going discussion  it  was  shown  that  the  rights  of  the 
parties  in  a  tort  action  are  governed  by  the  laws  of  the 
state  where  the  tort  was  committed.     That  is,  to  use  a 


TORTS  9 

latin  term,  they  are  determined  by  the  lex  delicti,  the 
laws  of  the  state  where  the  tortious  act  was  done.  But 
does  the  law  of  the  state  which  creates  and  defines  a 
right  govern  the  remedy  to  enforce  it?  There  is  cer- 
tainly In  the  law,  and  especially  in  the  CONFLICT  OF 
LAWS,  a  distinction  between  right  and  remedy.  A 
party  who  sues  in  one  state  to  enforce  a  right  he  ac- 
quired under  the  laws  of  another  is  asking  the  judicial 
aid  of  that  state.  And  that  state,  we  have  seen,  extends 
him  its  aid  on  the  general  principles  of  Comity;  but  in 
enforcing  his  right  there,  he  must  submit  to  the  remedy 
that  its  laws  graciously  provided  him.  He  cannot  as  a 
right,  demand  that  the  state  where  he  goes  entertain 
his  action.  Much  less  can  he  demand  that  the  state 
administer  a  different  remedy  in  his  case  than  its  courts 
generally  administer  in  favor  of  all  other  litigants.  In 
short,  he  is,  as  to  the  remedy,  governed  by  the  law  of 
the  state  where  he  brings  the  action ;  but  as  to  the  right, 
it  is  defined  by  the  law  of  the  state  whose  laws  origin- 
ally conferred  it.  So  therefore,  in  the  CONFLICT  OF 
LAWS  respecting  actions  in  tort,  there  is  a  substantial 
distinction  between  right  and  remedy. 

The  difficult  inquiry  however,  is  to  decide  whether  a 
particular  question  pertains  to  the  remedy.  If  it  per- 
tains to  the  right,  it  is  governed  by  the  law  of  the  state 
where  tort  was  committed.  That  is,  as  was  above  stated, 
the  lex  delicti.  But  if  it  concerns  the  remedy,  it  is  reg- 
ulated by  the  law  of  the  state  where  the  action  is 
brought,  that  is,  in  latin,  the  lex  fori,  the  law  of  the  forum. 
A  case  in  which  this  very  question  arose  was  Austin  v. 
R.  R.  Co.,  122  Ky.  304,  91  S.  W.  742.  In  that  case,  A 
was  injured  in  Indiana  by  the  negligence  of  a  Eailroad 
company.  He  sued  the  Company  in  Kentucky  to  recover 
for  those  injuries.  While  the  action  was  being  tried, 
he  died.  His  administrator  sought  to  revive  the  action 
and  pro-  d  with  the  trial.  The  question  was,  can  the 
action  be  revived?  The  solution  of  this  question  de- 
pended of  course  on  whether  the  power  to  revive  a 
pending  action  is  a  question  that  pertains  to  the  right 


10  CONFLICT  OP  LAWS 

or  to  the  remedy,  since  the  laws  of  Kentucky  and  Indiana 
conflicted  on  the  point.  The  Kentucky  Court  held  that 
the  power  to  revive  an  action  pertains  to  the  remedy; 
and  is  therefore  regulated  by  the  law  of  the  state  where 
the  action  is  brought;  and  since  it  was  brought  in  Ken- 
tucky, its  law  allowing  revival  governed  the  case,  so  the 
trial  could  proceed.  Now,  it  will  be  observed  with  re- 
spect to  the  case  cited  that,  the  Court  held  substantially 
that  the  revivability  of  the  action  is  a  procedural  and 
not  a  substantive  question,  and  hence  is  determined  by 
the  law  of  the  forum. 

But,  the  important  question  is,  how  do  we  distinguish 
generally  between  things  that  relate  to  the  right  and 
things  that  relate  to  the  remedy?  The  author  believes 
it  is  simpler  to  recognize  a  remedial  than  a  substantive 
element  in  a  tort.  Naturally,  they  are  exclusive.  That 
is,  an  element  in  a  case  is  either  of  the  right  or  of  the 
remedy.  It  cannot  be  both  at  the  same  time.  The  safe 
guide  therefore,  is  to  first  decide  whether  it  is  remedial. 
Now,  as  a  rule  it  is  remedial  if  it  deals  with  a  question 
of  pleading.  And,  it  is  remedial  if  it  presents  a  ques- 
tion of  practice.  And  again,  it  is  remedial  if  it  presents 
a  question  of  evidence.  Now,  since  right  and  remedy 
are  exclusive,  if,  within  these  general  principles,  the 
question  of  law  in  a  case  pertains  to  the  remedy,  the 
law  of  the  state  where  the  action  is  on  trial  will  govern 
its  solution.  Otherwise,  the  law  of  the  state  where  the 
action  arose  will  be  applicable. 

But,  in  spite  of  the  general  rules  that  have  been  stated 
which  will  materially  assist  in  distinguishing  these  two 
conflicting  elements  that  are  always  present  in  a  tort 
action,  a  still  more  difficult  question  arises.  It  is  this, 
which  law — the  lex  delicti  of  the  lex  fori — governs  de- 
fenses? A  defense  is  that  which  defeats  an  action. 
That  is,  it  defeats  it  either  on  technical  or  on  meritorious 
grounds.  In  other  words,  some  defenses  bar  an  action; 
others  show  it  does  not  exist.  Hence,  there  are  two 
forms  of  defense — the  one  technical  and  the  other 
meritorious.    A  good  illustration  of  a  technical  defense 


TORTS  11 

is  abatement.  This  defense  means  that  where  a  tort  is 
personal,  the  right  to  sne  abates  with  the  death  of  the 
party.  But  it  is  nevertheless  a  technical  defense.  It 
merely  bars  the  action.  It  does  not  go  into  the  merits 
of  the  case.  It  does  not  absolutely  prove  that  there  is 
no  action.  It  is  evasive,  on  the  other  hand,  it  entrenches 
itself  in  the  technicality  of  procedure,  and  in  that  way, 
by  a  species  of  legal  cowardice,  this  defense  bars  the 
action.  It  is  therefore  a  defense  created  by  the  law  of 
procedure,  that  is,  the  law  of  the  state  where  action  is 
brought.  Hence,  our  conclusion  is  that  if  a  defense  is 
technical  only,  it  presents  a  question  of  procedure,  and 
the  right  to  interpose  it  is  governed  by  the  law  of  the 
forum. 

Now,  the  other  class  of  defenses  are  of  an  entirely 
different  character.  They  are  meritorious.  They  show 
no  action  exists.  They  prove  on  the  merits  by  actual 
trial  before  a  jury,  that  there  is  no  liability  in  the  case, 
because  there  is  no  right  that  has  been  violated.  Cer- 
tainly such  a  defense  is  distinguishable.  Where  there 
is  no  right  there  is  no  liability,  since  these  terms  are 
correlative.  Now  then,  where  a  defense  shows  that  there 
is  no  liability,  it  necessarily  shows  there  is  no  right. 
This  is  indisputable.  In  simpler  language,  where  there 
is  a  right  there  is  a  liability.  And  where  there  is  no 
right  there  is  no  liability.  Now,  if  a  defense  proves 
that  there  is  no  liability,  it  necessarily  proves  there  is 
no  right,  and  since  the  question  as  to  whether  there  is 
a  right  or  liability  in  a  case  is  a  substantive  question, 
the  right  to  interpose  it  is  governed  by  the  law  of  the 
state  where  the  cause  of  action  arose.  A  good  illustra- 
tion of  a  meritorious  defense  is  contributory  negligence. 
This  means  that  in  an  action  of  negligence,  if  the  party 
suing  was  guilty  of  contributory  negligence  in  causing 
the  injury,  he  cannot  recover.  It  goes  into  the  merits 
of  the  case.  It  proves  that  there  was  no  right  since  there 
was  no  liability,  because  where  a  party  is  guilty  of  con- 
tributory negligence,  there  is  legally  no  tort.  This  class 
of  defense  is  therefore  a  defense  created  by  the  substan- 


12  CONFLICT  OF  LAWS 

tive  law,  that  is,  the  law  of  the  state  where  the  injury 
occurred,  and  the  right  to  interpose  it  is  governed  by 
that  law  exclusively.  These  principles  are  logical.  Con- 
crete illustrations  of  right  and  remedy  will  be  found 
in  the  multitudinous  decisions  on  the  subject,  and  while 
the  distinctions  developed  here  are  not  directly  stated, 
they  are  established  argumentatively  by  the  citations 
in  the  notes. 


DEATH  ACTIONS 

CHAPTER  IH 

Rule:  A  DEATH  ACTION  ARISES  IN  THE  STATE  WHERE  THE 
FATAL  INJURY  WAS  RECEIVED.  1 

Rule:     THE  ACTION  IS  TRANSITORY.2 

Rule:  THE  EIGHTS  OF  THE  PARTIES  ARE  GOVERNED  BY 
LAWS  OF  THE  STATE  WHERE  THE  FATAL  INJURY  WAS  RE- 
CEIVED.3 

Rule:  THE  REMEDIES  OF  THE  PARTIES  HOWEVER,  ARE  DE- 
TERMINED BY  LAW  OF  THE  STATE  WHERE  THE  ACTION  IS 
BROUGHT.4 

Sec.  7.  Tn  our  preceding  discussion  of  Torts,  it  was 
shown  that  whether  an  act  is  a  tort  or  not,  depends 
on  the  law  of  the  state  where  that  act  was  done.  If  it 
is  a  tort  there,  it  creates  a  liability  enforcible  in  any 
state.  Now,  a  death  action  is  a  tort.  That  is,  it  is  an 
action  to  recover  damages  for  an  act  that  causes  the 


l— McCarthy  vs.  r.  r.  co., 

18  KANS.  46,  26  AM.  R.  742. 

2— DENNICK  VS.  R.  R.  CO.,  103 
U.  S.  11,  26  L.  ED.  439;  Leonard 
vs.  Navigation  Co.,  84  N.  Y.  48, 
38  Am.  R.  491;  (Contra:  Vauter 
vs.  R.  R.  Co.,  84  Mo.  679,  54  Am. 
R.  105;  Ash  vs.  R,  R.  Co.,  72  Md. 
144,  19  Atl.  643).  Wooden  vs. 
R.  R,  Co.,  126  N.  Y.  10,  26  N. 
E.  1050;  NELSON  VS.  R.  R.  CO., 
88  VA.  971,  14  S.  E.  838.  Higgins 
vs.  R.  R.  Co.,  155  Mass.  176,  29 
N.  E.  534.  Contra:  Saint  L.  I. 
M.  &  I.  R.  R.  Co.  vs.  McCormick, 
71  Tex.  660,  9  S.  W.  540;  O'Reilly 
vs.  R.  R.  Co.  16  R.  I.  388,  17  Atl. 
906;  BALTIMORE  &  O.  R.  R.  CO. 
VS.   CHAMBERS,  73   OH.   ST.   16, 


76  N.  E.  91;  DOUGHERTY  VS. 
PROCESS  CO.,  255  ILL.  369,  99 
N.  E.  619. 

3— USHER   VS.   R.   R.   CO.,    126 

PA.  ST.  206,  17  ATL.  597;  Wooden 
vs.  R.  R.  Co.,  126  N.  Y.  10,  26 
N.  E.  1050;  Higgins  vs.  R.  R.  Co., 
155  Mass.  176,  29  N.  E.  534; 
HARTNESS  VS.  PHARR.  133  N. 
C.  566,  45  S.  E.  901;  Hartley  vs. 
Hartley,  71  Kans.  691,  81  Pac.  505. 
See:  Brunswick  Term.  Co.  vs. 
Bank,  40  C.  C.  A.  22,  99  Fed.  635. 
4— Vawter  vs.  R.  R.  Co.,  84  Mo. 
679,  54  Am.  R.  105;  WOODEN 
VS.  R.  R.  CO.,  126  N.  Y.  10,  26 
N.  E.  1050.  See:  Brunswick 
Term.  Co.  vs.  Bank,  40  C.  C.  A 
22,  99  Fed.  635. 


13 


14  CONFLICT  OF  LAWS 

death  of  a  person.  It  will  be  observed  therefore,  that 
a  death  action  involves  two  acts, — the  injury  and  the 
death.  And  the  question  now  arises,  which  of  these 
acts  is  the  tort?  Is  it  the  injury  that  produces  death 
that  is  regarded  as  the  tort!  Or  on  the  contrary,  is  it 
the  death  that  is  thereby  produced,  that  is  regarded  as 
the  tort?  The  decision  of  this  question  is  preliminary 
to  a  discussion  of  death  actions,  since  we  must  first 
determine  where  the  tort  is  committed  before  we  can 
assign  a  governing  law  to  the  tort.  A  careful  analysis 
of  the  problem  shows  that  a  death  action  is  a  tort  not 
in  that  state  where  the  death  occurs,  but  in  that  state 
where  the  fatal  injury  was  inflicted.  In  other  words, 
the  tort  involved  is  the  injury  and  not  the  death.  That 
is,  the  injury  is  the  cause ;  the  death  is  the  effect.  The 
injury  is  the  act  of  the  defendant;  the  death  the  result- 
ing act  of  nature.  The  injury  is  the  sufficient  cause  of 
the  death,  voluntarily  produced  by  the  defendant.  The 
death  is  its  involuntary,  inevitable  consequence.  So 
therefore,  in  the  CONFLICT  OF  LAWS,  a  death  action 
is  a  tort  in  the  state  where  the  original  fatal  injury 
was  inflicted,  regardless  of  where  the  injured  person 
died.  And  being  a  tort  solely  in  that  state,  the  rights 
and  liabilities  of  the  parties  to  the  action  are  governed 
by  the  law  of  that  state. 

These  principles  were  applied  in  the  case  of  McCarthy 
v.  R.  R.  Co.,  18  Kans.  46,  26  Am.  R.  742.  In  that  case 
the  Kansas  court  held,  that  where  the  injury  was  in- 
flicted in  Missouri  and  death  resulted  in  Kansas,  the 
cause  of  action  was  governed  by  the  law  of  Missouri, 
since  the  injury  having  been  received  there,  the  tort  of 
death  by  wrongful  act  was  complete  there,  and  not  in 
Kansas  where  death  occurred.  Hence,  the  locality  in  the 
CONFLICT  OF  LAWS,  of  a  death  action  is  where  the 
fatal  injury  was  received. 

Sec.  8.  In  our  study  of  Comity,  it  was  shown  that  a 
right  acquired  under  the  laws  of  one  state  can  generally 
be  enforced  in  another  state.    A  death  action  is  no  ex- 


DEATH  ACTIONS  15 

ception.  If  the  right  to  sue  for  tortious  death  is  con- 
ferred by  the  laws  of  the  state  wherein  the  injury  that 
caused  it  was  inflicted,  the  right  is  redressable  in  all 
states,  because  being  an  action  to  recover  damages,  and 
not  to  try  title  to  real  property,  it  is  transitory.  It  is 
true,  death  actions  are  in  some  respects  peculiar;  but 
they  are  not  peculiar  in  respect  of  their  enforcement  in 
other  states.  Incidentally,  they  are  of  statutory  org-in, 
not  having  existed  under  the  common  law.  But  the 
statutory  character  of  a  right,  it  was  shown  under  the 
rules  of  Comity,  does  not  distinguish  it  from  any  other 
right.  When  a  court  therefore  enforces  a  death  action 
on  the  principle  of  interstate  reciprocity,  it  does  not 
enforce  the  law  that  creates  it.  It  simply  enforces  a 
right  that  law  creates.  It  is  to  be  noted  that  Comity 
is  a  principle  that  is  being  gradually  extended,  and  not 
limited,  in  its  operation.  There  was  a  time  when  a  dis- 
tinction existed  between  common  law  and  statutory  torts, 
but  that  distinction,  having  an  unsound  basis,  is  now 
generally  repudiated. 

The  United  States  Supreme  Court  in  the  leading  case 
of  Dennick  v.  R.  R.  Co.,  103  U.  S.  11,  26  L.  Ed.  439 
gives  an  interesting  discussion  of  the  whole  subject.  In 
that  case  A  sued  a  railroad  company  in  the  state  of 
New  York  for  the  tortious  death  of  a  person  injured  in 
New  Jersey,  where  the  deceased  later  had  died.  The 
action  was  held  maintainable.  The  Court  said :  "  Where- 
ever  by  either  the  common  law  or  the  statute  law  of  a 
state,  a  right  of  action  has  become  fixed  and  a  legal 
liability  incurred,  that  liability  can  be  enforced  and  the 
right  of  action  pursued  in  any  court  which  has  jurisdic- 
tion of  such  matters  and  can  obtain  jurisdiction  of  the 
parties."  And  in  holding  the  action  transitory  the 
Court  said:  "It  is  indeed  a  right  dependent  solely  on 
the  statute  of  the  state,  but  when  an  act  is  done  for 
which  the  law  says  a  person  shall  be  liable,  and  the  ac- 
tion by  which  the  remedy  is  to  be  enforced  is  of  that 
character  which  the  law  recognizes  as  transitory  and  not 
local,  we  cannot  see  why  the  defendant  may  not  be  held 


16  CONFLICT  OF  LAWS 

liable  in  any  court  to  whose  jurisdiction  lie  can  be  sub- 
jected by  personal  process  or  voluntary  appearance,  as 
was  the  case  here." 

These  forceful  quotations  from  the  outstanding  de- 
cision on  death  actions  are  sufficient  to  show  that  a  death 
action,  though  statutory  in  orgin,  is  also  transitory,  and 
can  be  enforced  in  any  state  under  the  general  rules  of 
Comity,  applicible  to  such  actions. 

Sec.  9.  So  far,  the  substance  of  our  discussion  of  death 
actions  is,  that  they  arise  in  the  state  where  the  injury 
is  inflicted ;  that  they  are  statutory  torts ;  and  that,  being 
actions  to  recover  a  personal  judgment,  are  transitory; 
and  hence,  can  be  enforced  in  any  state  where  jurisdic- 
tion of  the  person  is  acquired.  We  now  pass  to  a  more 
complicated  series  of  problems.  And  these  problems 
will  be,  to  determine  which  state  law  determines  the 
various  questions  that  will  arise. 

Now,  before  discussing  the  application  of  the  special 
rules  of  CONFLICT  OF  LAWS  to  death  actions,  it  will 
clarify  the  subject  to  refer  briefly  to  a  few  fundamentals. 
And  these  are  that  a  death  action  is  a  tort.  And  in 
torts  there  is  a  distinction  between  rights  and  remedies. 
And  since  a  death  action  is  a  tort,  there  is  therefore  in 
death  actions,  a  distinction  between  a  question  of  right 
and  a  question  of  remedy.  And  the  result  is,  that  if 
the  question  relates  to  the  rights  of  the  parties,  it  is 
governed  by  the  law  of  the  state  where  the  death  action 
arose.  But,  on  the  other  hand,  if  the  question  relates 
to  the  remedies  of  the  parties,  it  is  determined  by  the 
law  of  the  state  where  the  action  to  recover  damages 
for  tortious  death  is  brought.  So  therefore,  we  have 
a  sharp  distinction  in  death  actions,  as  we  have  in  all 
tort  actions,  and  that  is  that  questions  of  right  are 
governed  by  the  lex  delicti  and  questions  of  remedy 
by  the  lex  fori. 

But  the  difficulty  is,  how  do  we  decide  whether  a 
particular  question  in  a  death  action  relates  to  the  right 
or  whether  it  pertains  to  the  remedy?     It  is  realized 


DEATH  ACTIONS  17 

that  there  is  a  real  difficulty  in  such  case.  If  we  refer 
to  the  decisions,  the  only  light  we  receive  is  in  the 
form  of  a  general  principle,  but  not  in  the  form  of  any 
distinction  that  will  readily  distinguish  cases  of  right 
from  remedy  So  therefore,  we  must  propose  a  test. 
And  that  test,  it  is  believed,  is  that  if  the  statute  con- 
ferring the  right  of  action,  by  its  own  terms,  contains 
a  provision  on  the  subject,  the  question  is  one  of  right. 
Otherwise,  it  is  one  of  remedy. 

Now,  what  is  the  explanation  of  this  distinction? 
Briefly,  a  death  action  is  in  some  respects  peculiar.  It 
is  peculiar  especially  in  that  the  statute  creating  it, 
creates  not  only  the  right,  but  also  the  remedy  to  en- 
force that  right.  The  statute  is  an  entirety.  The  right 
and  the  remedy  are  so  inseparable,  that  whether  the 
party  sues  in  his  own  state  or  in  a  neighboring  state, 
suing  on  the  statute,  he  must  comply  with  its  provisions 
by  using  the  remedy  that  statute  gives  him  to  enforce 
the  right.  Hence,  in  death  actions,  the  general  principle 
is  that  the  rights  and  the  remedies  of  the  parties  are 
generally  governed  by  the  law  of  the  state  where  the 
action  arose.  But,  by  way  of  distinction,  if  the  statute 
contains  no  provision  on  the  subject,  in  such  a  case,  it 
is  strictly  a  question  of  remedy,  and  will  be  governed 
by  the  law  of  the  forum.  In  our  syllabus  of  the  Chapter, 
it  was  stated  that  the  rights  of  parties  depend  on  law 
of  the  state  where  fatal  injury  was  received,  but  that 
the  remedies  were  regulated  by  law  of  state  where  action 
is  brought.  Those  two  basic  propositions  are  sound 
law,  provided  the  distinction  is  understood,  and  that  is 
that  the  statute  must  first  be  consulted.  The  statute 
always  determines  their  remedies,  but  where  it  is  silent, 
in  such  a  case,  the  remedy  is  governed  by  the  law  of 
the  forum. 

Now,  let  us  refer  to  an  illustrative  case  for  an  ap- 
plication of  the  law  as  it  has  been  developed.  In  Usher 
v.  R.  R.  Co.,  126  Pa.  St.  206,  17  Atl.  597,  the  facts  were, 
that  A  sued  the  Railroad  Company  in  Pennsylvania  for 
the  death  of  B  in  New  Jersey,  basing  the  right  of  re- 


18  CONFLICT  OF  LAWS 

covery  on  the  New  Jersey  Statute.  The  New  Jersey 
statute  provided  that  action  for  death  must  be  brought 
by  the  personal  representative  of  the  deceased,  whereas 
A,  in  this  case  was  not  the  personal  representative,  but 
merely  the  widow.  The  Pennsylvania  court  held  the 
action  not  maintainable.  The  Court  said:  "Is  the 
question  of  the  party  who  may  sue  merely  a  question 
of  the  remedy  and  therefore  determinable  by  the  law 
of  the  forum?  Undoubtably  there  are  cases  where  it 
is  so.  But  where  the  matter  is  not  of  form  merely,  but 
of  right,  the  remedy  must  follow  the  law  of  the  right." 
Hence,  paraphrasing  the  opinion  of  the  Court,  it  was 
held  that  in  a  death  action  the  statute  must  first  be  con- 
sulted to  determine  whether  a  question  is  substantive 
or  remedial.  If  the  statute  contains  a  provision,  as  it 
did  here,  directing  the  personal  representative  to  sue, 
the  question  is  determined  by  the  law  of  the  state  where 
action  arose,  even  though  ordinarily  in  other  actions 
that  is  purely  a  remedial  question. 

So  therefore,  our  conclusion  on  this  whole  subject  is, 
that  if  a  dispute  arises  in  a  death  action  as  to  whether 
it  is  a  substantive  or  a  remedial  question,  first  of  all 
consult  the  statute  on  which  the  action  is  based.  It  will 
always  contain  substantive,  and  generally  contain  some 
remedial,  provisions.  Now,  if  it  will  by  its  terms  solve 
the  problem,  it  governs.  But  on  the  other  hand,  if  the 
statute  is  silent  and  contains  no  provision  on  the  sub- 
ject, in  such  a  case  the  question  of  remedy  is  governed 
by  the  law  of  the  forum. 

Sec.  10.  The  distinction  established  in  the  foregoing 
discussion  was  that  in  death  actions,  the  rights  of  the 
parties  are  always  governed  by  the  lex  delicti,  and  that 
the  remedies  are  generally  fixed  by  the  lex  delicti,  un- 
less the  statute  does  not  contain  a  provision  on  the  sub- 
ject. In  such  a  case,  where  the  statute  does  not  deter- 
mine the  specific  question  of  remedy,  it  is  determined  by 
the  lex  fori.  In  other  words,  the  remedies  of  the  parties 
to  a  death  action  are  generally  prescribed  in  the  statute 


DEATH  ACTIONS  19 

along  with  the  rights,  and  where  it  regulates  the  remedy, 
the  law  of  the  forum  has  no  application. 

But  the  law  of  remedies  is  very  broad.  The  statute 
can  at  best  only  prescribe  the  procedure  to  enforce  the 
right  in  a  general  way.  It  cannot  therefore,  anticipate 
all  questions  of  remedy  that  will  arise  in  the  enforce- 
ment of  the  statute,  and  legislate  so  as  to  include  them. 
So  it  is  then,  that  occasionally  a  question  of  procedure 
arises  which,  on  consulting  the  statute,  we  find  is  not 
expressly  provided  for.  According  to  our  distinction 
therefore,  in  such  a  case  the  law  of  the  state  where  the 
action  is  brought  decides  that  particular  question  of 
procedure. 

This  was  the  point  involved  in  Wooden  v.  R.  R.  Co., 
126  N.  Y.  10,  26  N.  E.  1050.  In  that  case,  A  sued  the 
Railroad  Company  in  New  York  for  a  death  caused  in 
Pennsylvania,  thereby  basing  the  action  on  the  Pennsyl- 
vania statute.  Now,  the  Pennsylvania  statute  contained 
no  provision  limiting  the  amount  recoverable,  whereas  the 
New  York  Law  limited  the  amount  recoverable.  The  court 
held  that  the  question  as  to  the  amount  recoverable  was 
a  remedial  question  to  be  decided  by  the  New  York  law, 
and  therefore  only  a  limited  judgment  could  be  obtained, 
the  Pennsylvania  statute  having  been  silent  on  the  ques- 
tion. It  is  clear  therefore,  in  this  discussion  of  death 
actions  that  this  general  distinction  is  recognized  and 
applied  by  the  courts.  And  in  view  of  the  very  peculiar 
nature  of  a  death  action  it  is  really  not  at  all  singular. 
A  death  action  is,  as  has  been  insisted,  statutory.  The 
right  to  recover  and  the  remedy  whereby  to  recover,  are 
both  statutory,  and  are  deemed  legally  inseparable,  so 
that  the  remedy  is  a  part  of  the  right,  and  is  the  only 
remedy  therefore  by  which  that  right  can  be  enforced. 
Hence,  if  a  question  in  the  CONFLICT  OF  LAWS 
arises,  whether  it  relates  ordinarily  to  right  or  remedy, 
the  statute  is  first  to  be  examined.  If  it  decides  the 
question,  whether  it  is  ordinarily  substantive  or  proced- 
ural, the  statutory  provision  is  conclusive.  On  the  other 
hand,  if  as  in  the  case  just  cited,  the  statute  on  which 


20  CONFLICT  OF  LAWS 

the  action  is  predicated,  does  not  by  affirmative  expres- 
sion, decide  the  question,  it  is  remedial,  and  on  general 
principles,  as  in  the  case  under  discussion,  is  determined 
by  the  law  of  the  forum. 


CONTRACTS 

CHAPTER  IV 

Rule:  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  PARTIES  TO 
A  CONTRACT  ARE  GOVERNED  BY  THE  LAWS  OF  THE  STATE 
WHERE  IT  WAS  MADE.l 

Exception:  UNLESS  IT  WAS  EXPRESSLY  TO  BE  PERFORMED 
IN  ANOTHER  STATE2  OR,  UNLESS  IT  CREATES  RIGHTS  IN  REAL 
PROPERTY.3 

Rule:  A  CONTRACT,  VALID  WHERE  MADE  OR  EXPRESSLY  TO 
BE  PERFORMED,  IS  ENFORCTBLE  IN  ANOTHER  STATE.4  BUT, 

Exception:  IT  IS  NOT  ENFORCIBLE  IF  IT  IS  IN  VIOLATION  OF 
LOCAL  PUBLIC  POLICY.5 

Rule:  A  CONTRACT  VOID  WHERE  MADE,  OR  TO  BE  EX- 
PRESSLY PERFORMED,  IS  NOT  ENFORCIBLE  IN  ANOTHER 
STATE.6 

Sec.  11.  We  are  now  prepared  to  discuss  the  applica- 
tion of  the  principles  of  CONFLICT  OF  LAWS  to  the 
subject  of  Contracts.  But  before  taking  up  the  special 
rules  of  the  subject,  explaining  them,  and  illustrating 
their  application  by  concrete  cases,  it  is  necessary  to 
state  a  few  essentials  by  way  of  introduction.    It  is  be- 

l_Vermont  Bank  vs.  Porter,  5  164,  24  Atl.  620;  Wolf  vs.  Burke, 

Day  316   (Conn.),  5  Am.  D.  157;  18  Colo.  264,  32  Pac.  427;    Evans 

Satterthwaite    vs.    Doughty,    Bus-  vs.  Beaver,  50  Oh.  St.  190,  33  N. 

bees  Law  314   (N.  C),  59  Am.  D.  E.  643;  Miller  vs.  Wilson,  146  111. 

554;   Bank  of  Louisiana  vs.  Wil-  523,    34    N.    E.    1111;    Poison    vs. 

liams,    49    Miss.    618,    12    Am.    R.  Stewart,  167   Mass.  211,  45  N.  E. 

319;  King  vs.  Sarria,  69  N.  Y.  24,  737;  APPEAL  OF  FREEMAN,  68 

25   Am.  R.   128;    MILLIKEN  VS.  CONN.  533,  37  ATL.  420;   Brown 

PRATT,  125  MASS.  374,  28  AM.  R.  vs.  Dalton,  105  Ky.  669,  49  S.  W. 

241;  GRAHAM  VS.  BANK,  84  N.  443;    State  Bank  of  Eldorado  vs. 

Y.  393,  38  Am.  R.  528;   Robinson  Maxson,  123  Mich.  250,  82  N.  W. 

vs.  Queen,  87  Tenn.  445,  11  S.  W.  31;  Thompson  vs.  Taylor,  66  N.  J. 

38;  Cochran  vs.  Ward,  5  Ind.  App.  L.   253,   49   Atl.   544;    Union   Nat. 

89,   29   N.  E.   795,   31  N.   E.   581;  Bank  vs.  Chapman,  169  N.  Y.  538, 

Baum   vs.    Birchall,    150    Pa.    St  62    N.    E.    672;    CANNADY    VS. 

21 


22 


CONFLICT  OP  LAWS 


lieved  that  these  essentials  will  materially  assist  us  later 
on  in  the  solution  of  all  our  problems,  and  enable  us  to 
determine  readily,  any  general  question  in  the  law  of 
Contracts. 

And  what  are  these  preliminary  essentials?  Our 
study  of  CONFLICT  OF  LAWS  so  far,  enables  us  to 
say  that  the  CONFLICT  OF  LAWS  is  that  subject  which 
determines  which  state  law  governs  a  particular  case. 
It  is  clear  therefore,  that  if  the  facts  of  a  case  involve 
the  laws  of  several  states,  a  problem  in  the  CONFLICT 
OF  LAWS  arises.  Hence,  as  a  simple  illustration,  if 
a  contract  is  made  in  Ohio  and  action  to  enforce  it  is 
brought  in  Illinois,  the  facts  here  show  that  the  laws 
of  two  different  States  are  involved  and,  as  we  shall 


RAILROAD  CO.,  143  N.  C.  439, 
55  S.  E.  836;  Clarey  vs.  Insurance 
Co.,  143  Ky.  540,  136  S.  W.  1014; 
Burr  vs.  Beckler,  264  111.  230, 
106  N.  E.  206.  Contra:  NORTH- 
WESTERN MAS.  AID  ASS'N 
VS.  JONES,  154  PA.  ST.  99,  26 
ATL.  253;  BRANDEIS  VS.  AT- 
KINS, 204  MASS.  471,  90  N.  E. 
861;  See:  Brunswick  Term.  Co. 
vs.  Bank,  40  C.  C.  A.  22,  99  Fed. 
635;  CHEM.  NAT.  BANK  VS. 
KELLOGG,  183  N.  Y.  92,  75  N.  E. 
1103. 

2— Scudder  vs.  Bank,  91  U.  S. 
406,  23  L.  Ed.  245;  Prichard  vs. 
Norton,  106  U.  S.  124,  1  S.  Ct.  R. 
102;  First  Nat.  Bank  of  Waverly 
vs.  Hall,  150  Pa.  St.  466,  24  Atl. 
665;  CAMPBELL  VS.  COON,  149 
N.  Y.  556,  44  N.  E.  300;  Mack  vs. 
Quarries  Co.,  57  Oh.  St.  463,  49  N. 
E.  697;  BROWN  VS.  GATES,  120 
WIS.  349,  97  N.  W.  221,  98  N  .W. 
205;  Clarey  vs.  Insurance  Co.,  143 
Ky.  540,  136  S.  W.  1014;  See: 
Midland  Valley  R.  R.  Co.  vs.  Mfg. 
Co.,  80  Ark.  398,  97  S.  W.  679; 
GARRIGUE     VS.     KELLER,     164 


IND.  676,  74  N.  E.  523;  MAYER 
VS.  ROCHE,  77  N.  J.  L.  681,  75 
ATL.  235. 

3— CLARK  VS.  GRAHAM,  6 
WHEAT.  577  (U.  S.),  5  L.  ED. 
334;  Baum  vs.  Birchall,  150  Pa. 
St.  164,  24  Atl.  620;  Wolfe  vs. 
Burke,  18  Colo.  264,  32  Pac.  427; 
Evans  vs  Beaver,  50  Oh.  St.  190, 
33  N.  E.  643;  POLSON  VS.  STEW- 
ART, 167  MASS.  211,  45  N.  E. 
737;  Clement  vs.  Willette,  105 
Minn.  267,  117  N.  W.  491;  Burr 
vs.  Beckler,  264  111.  230,  106  N.  E. 
206;  See:  Robinson  vs.  Queen, 
87  Tenn.  445,  11  S.  W.  38;  Camp- 
bell vs.  Coon,  149  N.  Y.  556,  44 
N.  E.  300;  Mack  vs.  Quarries  Co., 
57  Oh.  St.  463,  49  N  E.  697;  Wall- 
ing vs.  Grocery  Co.,  41  Fla.  479, 
27  So.  46;  State  Bank  of  Eldor- 
ado vs.  Maxson,  123  Mich.  250, 
82  N.  W.  31;  Midland  Valley  R. 
R.  Co.  vs.  M'f'g  Co.,  80  Ark.  399, 
97  S.  W.  679. 

4— Scudder  vs.  Bank,  91  U.  S. 
406,  23  L.  Ed.  245;  KING  VS. 
SARRIA,  69  N.  Y.  24,  25  AM.  R. 
128;  Milliken  vs.  Pratt,  125  Mass. 


CONTRACTS 


23 


explain,  the  rights  of  the  parties  to  this  contract  would 
be  governed  by  the  law  of  Ohio,  where  it  was  made ;  while 
the  remedies  would  be  governed  by  the  law  of  Illinois, 
where  the  action  to  enforce  it  is  brought.  But  this  is 
only  a  simple  illustration.  A  contract  is  generally,  in 
actual  practice  a  complex  transaction.  That  is,  it  in- 
volves several  elements,  and  therefore  involves  the  laws 
of  several  states.  In  the  CONFLICT  OF  LAWS  the 
generally  accepted  analysis  of  a  contract  is,  that  there 
is  in  all  contracts  a  state  where  it  is  made;  and  a  state 
where  it  is  to  be  performed;  and  a  state  where  action 
to  enforce  it  is  brought.  Occasionally,  there  is  also  a 
state  in  which  the  real  property,  which  is  the  subject 
matter  of  the  contract,  is  located.  Now,  therefore,  in 
any  contract  case  arising  under  the  CONFLICT   OF 


374,  28  Am.  R.  241;  Pritchard  vs. 
Norton,  106  U.  S.  124,  1  S.  Ct.  R. 
102;  Robinson  vs.  Queen,  87 
Tenn.  445,  11  S.  W.  38;  Baum  vs. 
Birchall,  150  Pa.  St.  164,  24  Atl. 
620;  First  Nat.  Bank  of  Waverley 
vs.  Hall,  150  Pa.  St.  466,  24  Atl. 
665;  Miller  vs.  Wilson,  146  111. 
523,  34  N.  E.  1111;  Wolf  vs. 
Burke,  18  Colo.  264,  32  Pac.  427; 
Campbell  vs.  Coon,  149  N.  Y.  556, 
44  N.  E.  300;  Poison  vs.  Stewart, 
167  Mass.  211,  45  N.  E.  737;  Mack 
vs.  Quarries  Co.,  57  Oh.  St.  463, 
49  N.  E.  697;  State  Bank  of  El- 
dorado vs.  Maxson,  123  Mich. 
250,  82  N.  W.  31;  THOMPSON  VS. 
TAYLOS,,  66  N.  J.  L.  253,  49 
ATL.  544;  Garrigue  vs.  Keller, 
164  Ind.  676,  74  N.  E.  523;  Mayer 
vs.  Roche,  77  N.  J.  L.  681,  75  Atl. 
235;  CLAREY  VS.  INSURANCE 
CO.,  143  KY.  540,  136  S.  W.  1014: 
See:  Chem.  Nat.  Bank  vs.  Kel- 
logg, 183  N  Y.  92,  75  N.  E.  1103. 
5— Hill  vs.  Wilker,  41  Ga.  449, 
5  Am.  R.  540;   Bank  of  Louisiana 


vs.  Williams,  46  Miss.  618,  12  Am. 
R.  319;  FLAGG  VS.  BALDWIN, 
38  N.  J.  E.  219,  48  AM.  R.  308; 
Armstrong  vs.  Best,  112  N.  C. 
59,  17  S.  E.  14;  Emery  vs.  Bur- 
bank,  163  Mass.  326,  39  N.  E. 
1026;  Gooch  vs.  Faucett,  122  N. 
C.  230,  29  S.  E.  362;  BROWN  VS. 
DALTON,  105  Ky.  669,  49  S.  W. 
443. 

6 — Satterthwaite  vs.  Doughty, 
44  N.  C.  314,  59  Am.  D.  504; 
Cochran  vs.  Ward,  5  Ind.  App. 
89,  29  N.  E.  795,  31  N.  E.  581; 
Evans  vs.  Beaver,  50  Oh.  St.  190, 
33  N.  E.  643;  Brown  vs.  Gates, 
120  Wis.  349,  97  N.  W.  219,  98 
N.  W.  205;  Union  Nat  Bank  vs. 
Chapman,  169  N.  Y.  538,  62  N.  F. 
672;  BURR  VS.  BECKLER,  264 
ILL.  230,  106  N.  E.  206;  See: 
Graham  vs.  Bank,  84  N.  Y.  393, 
38  Am.  R.  528;  Garrigue  vs.  Kel- 
ler, 164  Ind.  676,  74  N.  E.  523; 
Cannady  vs.  R.  R.  Co.,  143  N.  C. 
439,  55  S.  E.  836. 


24  CONFLICT  OF  LAWS 

LAWS,  the  very  first  duty  in  order  to  determine  the 
law  that  governs  is  to  analyze  the  whole  contract.  Re- 
solve it  into  its  various  elements.  If  all  those  elements 
transpired  in  the  one  state,  there  is  no  question  of 
CONFLICT  OF  LAWS  presented.  But  if  the  facts  in 
the  case  show  that  more  than  one  state  is  involved  in 
the  transaction,  there  is  a  CONFLICT  OF  LAWS,  and 
it  is  in  such  a  case  necessary  to  apply  the  special  rules 
we  shall  develop. 

To  begin  with,  the  general  principle  is  that  the  rights 
of  the  parties  to  a  contract  are  governed  by  the  law 
of  the  state  where  it  is  made.  This  is  a  very  broad 
proposition.  But,  it  is  always  necessary  to  determine 
as  a  primary  inquiry,  where  the  contract  is  made,  to 
determine  what  the  rights  of  the  parties  are.  A  con- 
tract, it  will  be  recalled,  requires  offer  and  acceptance. 
But  it  is  the  acceptance  that  binds  the  contract.  Hence 
that  state,  not  where  the  offer  originates,  but  where  the 
acceptance  occurs,  is  the  place  where  the  contract  is 
finally  made,  and  hence  its  laws  are  applicable.  For 
example,  the  offer  can  be  made  by  telegram,  and  that 
state  in  which  it  is  received  and  its  terms  accepted  by 
the  receiver,  is  the  place  of  contract.  Or,  the  offer  can 
be  made  by  letter,  and  that  state  in  which  it  is  received, 
and  its  terms  accepted  by  the  receiver,  fixes  the  locality 
of  the  contract.  Of  course,  under  exceptional  circum- 
stances, the  general  rule  cannot  be  easily  applied.  For 
example,  in  insurance  contracts,  is  it  the  act  of  the  Com- 
pany, or  the  act  of  the  insured,  that  constitutes  the 
acceptance,  and  hence  determines  where  the  contract  was 
made?  A  simple  solution  of  the  whole  difficulty  can  be 
suggested,  that,  it  is  believed,  will  govern  all  cases. 
And  that  is,  that  the  party  who  originates  negotiations 
generally  makes  the  offer,  while  he  who  closes  them 
certainly  makes  the  acceptance.  Hence,  the_  party  who 
by  an  overt  act,  accepts  the  proposition  originated  by 
another,  accepts  it  in  the  state  where  he  does  the  overt 
act.  Therefore;  if,  as  is  generally  the  situation,  the 
insured  makes  the  application,  he  originates  negotia- 


OONTEACTS 


25 


tions  not  merely  preliminary,  but  actually  with  a  view 
to  making  a  contract.  And  in  such  a  case,  since  he 
therefore  makes  the  offer,  the  Company  accepts  it  in  that 
State  where  it  indicates  acceptance  by  overt  act,  such 
as  depositing  the  policy  in  the  mail.  It  is  evident  there- 
fore, that  in  the  law  of  contracts,  it  is  first  necessary 
to  determine  which  party  originated  the  offer,  and  then, 
secondly,  to  determine  where  the  other  party  accepted  it. 
Having  determined  the  state  in  which  he  by  overt  act, 
accepted  the  original  offer,  the  state  in  which  he  ac- 
cepted it,  is  the  locality  of  the  contract.  Now,  by  the 
application  of  that  simple  rule,  we  have  been  able  to 
determine  in  any  case,  where  the  contract  was  made; 
and  having  determined  that  it  was  made  in  a  particular 
state,  all  questions  dealing  with  the  rights  and  obliga- 
tions of  the  parties  are  governed  by  its  laws. 

Now,  as  to  the  general  proposition  in  the  syllabus, 
it  is  not  arbitrary.     It  has  a  logical  basis.     And  that 
is  that,  when  two  parties  made  a  contract,  they  pre- 
sumably make  it  with  reference  to  the  laws  in  force  in 
the  state  where  it  is  made.    And  more  than  that.    Mak- 
ing a  contract  in  a  certain  state,  they  presumably  con- 
sulted the  laws  in  force  in  that  state,  in  order  to  defi- 
nitely fix  their  rights  under  the  contract.     Hence,  in 
the  making  of  a  contract,  the  law  presumes  that  the 
parties  consulted  the  laws  of  the   state  where  it  was 
made,   and  having  consulted  them,   had   knowledge   of 
those  laws,  and  having  made  the  contract  in  that  state 
with  reference  to  those  laws,  that  they  impliedly  incor- 
porated them  into  their  contract;  so  that  if  a  question 
arose  as  to  their  rights,  those  laws  alone  would  deter- 
mine the  question.     So  it  is  therefore,  that  the  rights 
of  the  parties  to  a  contract,  whether  it  involves  capacity 
to  make  the  contract,  or  a  question  of  interpretation, 
or  the  sufficiency  of  performance,  all  are  referable  to 
the  law  of  the  contract,  or,  as  it  is  latinized,  the  lex 
loci  contractus,  the  law  of  the  state  where  the  contract 
was  made. 

The  general  proposition  that  the  rights  of  the  parties 


26  CONFLICT  OF  LAWS 

depend  on  the  law  of  the  contract,  has  been  said  to  be 
very  broad  in  its  operation.  And  carefully  analyzed  it 
really  includes  three  minoy  principles.  One  of  these  is 
that  the  capacity  of  a  party  to  a  contract  is  governed 
by  the  lex  loci  contractus.  Now,  the  capacity  of  a  party 
means  the  legal  power  to  make  it  and  incidentally  incur 
liability.  Hence,  if  a  party  lacks  capacity  to  contract, 
he  incurs  no  liability  on  the  contract,  and  since  he  there- 
by incurs  no  liability,  the  other  party  acquires  no  right 
to  hold  him.  Therefore,  since  capacity  to  contract  deals 
with  the  rights  and  obligations  of  the  parties,  it  is 
governed  by  the  law  of  the  state  where  the  contract  was 
completed. 

A  good  illustration  of  this  principle  is  the  leading  case 
MilUken  v.  Pratt,  125  Mass.  347,  28  Am.  R.  241.  The 
facts  in  that  case  were,  that  A  sued  B,  a  married  woman, 
in  Massachusetts  to  recover  on  a  contract  mack  in  Maine, 
the  evidence  showing  that  under  the  laws  of  Maine,  where 
the  contract  was  made,  it  would  be  valid,  whereas  under 
the  laws  of  Massachusetts,  where  action  was  brought, 
it  would  be  invalid.  The  Court  allowed  a  recovery.  In 
an  elaborate  opinion,  the  Court  held  substantially,  that 
the  capacity  of  a  party  to  contract  is  regulated  by  the 
laws  of  the  state  where  the  contract  was  made,  and 
being  valid  there,  it  is  enforcible  in  other  states  on  the 
ground  of  Comity.  This  case,  believed  to  be  the  orig- 
inal decision  on  this  principle,  is  generally  cited  as  the 
leading  authority  on  this  branch  of  the  proposition. 

Now,  the  second  minor  principle  that  can  be  taken  as 
included  in  the  general  proposition  that  the  rights  of 
the  parties  are  governed  by  the  law  of  the  contract 
has  reference,  not  to  capacity,  but  to  the  interpretation 
of  a  contract.  That  is,  the  interpretation  of  a  contract 
is  governed  by  the  law  of  the  state  where  it  was  made. 
This  is  clear.  The  interpretation  of  the  contract  is  the 
construction  placed  upon  it  by  the  Court.  It  is  in  other 
words,  the  act  of  the  court  in  ascertaining  the  meaning 
of  the  contract.  Naturally,  where  a  contract  is  ambigu- 
ous, necessity  for  a  construction   of  its  terms  arises. 


CONTRACTS  27 

And  where  this  necessity  arises,  since,  when  the  parties 
made  the  contract,  they  made  it  with  reference  to  the 
laws  of  the  state  where  they  contracted,  those  laws  wall 
govern  its  interpretation,  because  they  have  been,  in 
legal  contemplation  incorporated  into  it,  made  a  part 
of  it,  and  therefore  the  only  laws  that  can  be  resorted 
to  in  ascertaining  their  intentions.  So  therefore,  the 
interpretation  of  a  contract  is  a  question  that,  like  capac- 
ity, directly  touches  the  rights  and  duties  of  the  parties, 
and  hence,  is  regulated  by  the  law  of  the  state  where  the 
contract  was  made. 

A  case  directly  in  point  is  Cannaday  v.  R.  R.  Co.,  143 
N.  C.  439,  55  S.  E.  836.  The  facts  were  that  A  sued  a 
Railroad  Company  in  North  Carolina  for  personal  in- 
juries sustained  in  South  Carolina,  where  the  contract 
of  employment  was  made.  In  the  course  of  the  trial, 
the  question  arose  as  to  whether  a  certain  clause  in  the 
contract  was  a  release  of  the  cause  of  action,  or,  merely 
an  agreement  to  elect  to  release  but  reserving  a  right 
to  sue.  The  North  Carolina  Court  held  that  this  was  a 
question  as  to  the  interpretation  of  the  contract,  and 
was  therefore  governed  by  the  law  of  South  Carolina 
where  the  contract  was  made.  The  case  is  clearly  sound. 
The  question  involved  in  the  case  was  solely  whether  a 
certain  ambiguous  provision  was  to  be  interpreted  by 
the  law  of  the  state  where  action  was  brought,  or  by 
law  of  that  state  where  contract  was  entered  into.  Since 
it  was  made  in  South  Carolina,  the  parties  in  using  lan- 
guage to  express  their  agreement,  in  legal  contemplation, 
had  reference  to  the  laws  of  the  state  where  they  made 
it.  They  therefore  made  those  laws  a  part  of  their  con- 
tract by  implication,  and  in  case  of  ambiguity,  such 
South  Carolina  laws  would  be  applied  in  ascertaining 
their  rights  under  the  contract. 

But  there  is  a  third  and  final  minor  principle  that  is 
included  in  the  general  proposition  that  the  rights  of 
the  parties  are  governed  by  the  law  of  the  contract. 
And  this  is  that  the  discharge  of  a  contract  is  deter- 
mined by  the  law  of  the  state  where  it  was  made.    The 


28  CONFLICT  OF  LAWS 

discharge  of  a  contract  means  briefly,  that  the  parties 
are  no  longer  liable  on  it.  That  is,  it  means  that  one 
no  longer  has  a  right  on  it  against  the  other.  In  other 
words,  it  means  that  one  party  has  done  a  certain  act 
in  pursuance  of  the  contract,  that  the  law  regards  as  a 
performance,  and  being  a  performance  of  the  contract, 
has  discharged  him  from  all  liability.  Hence,  the  ques- 
tion as  to  whether  a  contract  has  by  certain  acts,  been 
discharged,  deals  directly  with  the  rights  of  the  parties, 
and  is  therefore  governed  by  the  law  of  the  state  where 
the  contract  was  made.  Right  and  liability  are  correla- 
tive terms.  One  cannot  exist  without  the  other.  If  one 
party  is  discharged,  there  is  no  liability  on  his  part,  and 
therefore  no  right  in  the  other  party  to  the  contract  to 
hold  him  to  it. 

A  leading  case  in  which  this  very  question  arose  was 
Graham  v.  Bank,  84  N.  Y.  393,  38  Am.  R.  528.  The  facts 
although  complicated,  briefly  are  that  A,  a  married 
woman,  sued  the  bank  in  New  York  for  certain  dividends 
owing  on  stock  she  had  acquired  in  Virginia;  she  and 
her  husband  residing  in  Maryland.  The  bank's  defense 
was  that  it  had  paid  the  dividends  to  her  husband,  and 
that  since  under  the  Virginia  law,  where  the  contract 
was  made,  regardless  of  Maryland  law  where  they  were 
domiciled,  the  husband  is  legally  entitled  to  the  personal 
property  of  the  wife,  that  payment  to  the  husband  was 
payment  to  the  wife,  and  therefore  a  discharge  of  the 
contract  between  the  wife  and  the  bank.  The  Court 
upheld  the  defense  of  the  bank.  It  was  said:  "In  the 
present  case  the  contract  was  made  in  Virginia  and  to 
be  performed  there.  The  dividends  were  there  declared 
and  payable.  They  were  paid  to  the  husband  who  could 
lawfully  receive  and  appropriate  them,  by  the  law  of 
Virginia  to  his  own  use  and  benefit.  The  payment  was 
therefore  valid  and  effectual  and  discharged  the  bank 
from  liability." 

The  decision  is  unassailable.  The  facts  clearly  showed 
the  contract  was  made  and  even  to  be  performed  in 
Virginia.     Being  made  there,  the  rights  and  liabilities 


CONTRACTS  29 

of  the  parties  were  under  our  general  rule  governed  by 
the  law  of  Virginia.  And  by  that  law,  payment  of 
money  due  on  a  contract  with  a  wife  relieves  the  other 
party  even  though  he  pays  it  to  the  husband,  since  under 
the  Virginia  law,  in  personal  property  rights,  the  hus- 
band acquires  all  to  which  the  wife  is  entitled.  Since 
therefore,  payment  of  money  is  an  act  that  discharged 
the  contract,  and  such  payment  was  made  in  accordance 
with  the  Virginia  law  which  was  the  place  of  contract,  it 
was  sufficient  to  discharge  the  bank ;  the  domicile  of  the 
parties  having  no  bearing  on  the  law  of  contracts,  since 
domicile  determines,  as  we  shall  explain  under  marriage, 
only  the  marital  rights  of  husband  and  wife,  while  the 
question  here  involved  strictly  the  contrachial  rights  of 
wife  and  a  third  party,  the  banking  corporation. 

The  substance  of  the  entire  foregoing  explanation  is 
that  the  capacity  to  contract;  the  interpretation  of  the 
contract;  and  finally,  the  question  as  to  whether  it  has 
been  discharged,  are  all  determined  by  the  laws  of  the 
state  where  the  contract  was  originally  entered  into, 
irrespective  of  the  domicile  of  the  parties. 

Sec.  12.  The  general  principle,  as  we  have  shown,  is 
that  the  law  of  the  state  where  a  contract  is  made,  de- 
cides all  questions  that  relate  to  the  rights  of  the  parties. 
But  now,  there  is  a  distinct  problem  presented,  and  that 
is,  what  law  governs  if  the  contract  is  made  in  one  state, 
but  is  to  be  performed  in  another?  It  is  generally  true 
that  if  two  parties  make  a  contract  in  a  certain  state, 
they  presumably  contract  with  reference  to  the  laws  of 
that  state,  and  in  legal  contemplation  incorporate  those 
laws  into  the  contract,  and  make  them  a  substantial  part 
of  it  by  implication ;  hence  such  laws  are  operative  upon 
the  contract. 

But  clearly  this  is  only  a  general  rule.  If  the  parties, 
on  the  other  hand,  contract  in  one  state  and  expressly 
stipulate  that  the  contract  is  to  be  performed  in  another 
state,  an  entirely  different  situation  occurs.  In  other 
words,  in  such  a  case,  where  the  contract  is  made  in  one 


30  CONFLICT  OF  LAWS 

state,  but  is  to  be  performable  in  another  state,  the 
parties  presumably  contract  with  reference  to  its  laws, 
in  legal  contemplation  they  incorporate  those  laws  into 
the  contract  and  they  make  them  a  substantial  part  of 
it  by  implication.  Our  inference  therefore  is,  that  gen- 
erally speaking,  a  contract  is  regulated  by  the  law  of 
the  state  where  it  was  made,  but  as  an  exception,  it  is 
regulated  by  the  law  of  the  state  where  it  is  to  be  per- 
formed, if  the  parties  agree  that  it  is  to  be  performed 
in  a  different  state.  Hence,  the  rule  and  the  exception 
rest  on  the  common  ground,  that  the  governing  law  of 
a  contract  is  that  law  which  the  parties  have  in  their 
contract,  actually  intended  by  its  terms. 

As  a  fact,  in  practise  a  contract  is  generally  made 
and  performable  in  the  one  state,  and  where  that  is  the 
case,  as  it  generally  is,  the  proper  law  is  the  lex  loci 
contractus.  Now,  since  in  business  transactions  a  con- 
tract is  generally  made  and  to  be  performed  in  the  same 
state,  the  general  commercial  practise  has  created  the 
general  rule  of  law,  that  the  proper  law  is  where  it  is 
made.  And,  since  in  business  affairs  a  contract  is  only 
in  exceptional  cases  performable  in  a  state  other  than 
where  it  was  made,  the  exceptional  practise  here  has 
created  the  exceptional  rule  of  law  that  in  those  few 
cases,  the  proper  law  is  the  lex  loci  solutionis,  that  is, 
the  law  of  the  state  where  it  is  to  be  performed.  So 
therefore,  the  exception  we  are  now  discussing  is,  that 
a  contract,  if  performable  in  a  state  other  than  where 
it  was  made,  is  governed  by  the  law  of  the  state  where 
performance  is  to  be  had.  And  there  is  no  difficulty 
in  defending  either  the  rule  or  the  exception,  because, 
as  has  been  said,  the  applicatory  law  is  that  law  with 
reference  to  which  the  parties  contracted.  If  it  is  made 
and  performable  in  the  one  state,  they  contract  with 
reference  to  the  law  where  it  was  made.  But  if  it  is 
made  in  one  state  and  is  performable  in  another  state, 
in  such  a  case  they  certainly  by  their  very  agreement, 
contract  with  reference  to  the  laws  of  the  state  where 
it  is  to  be  performed;  and  incorporate  them  into  the 


CONTRACTS  31 

contract;  and  make  them  part  of  that  contract;  and  of 
course  those  laws  are  therefore,  decisive  as  to  their 
rights  in  the  transaction. 

This  vital  exception,  that  a  contract,  if  performable 
in  another  state,  is  governed  by  the  lex  loci  solutionis, 
is  very  clearly  applied  in  an  instructive  case,  Brown  v. 
Gates,  120  Wis.  349,  97  N.  W.  221,  98  N.  W.  205.  The 
facts  were,  that  A.  sued  B  in  Wisconsin  to  recover  on 
certain  notes  made  in  New  York,  but  payable  in  Mass- 
achusetts, the  notes  being  valid  by  New  York  law  where 
made,  but  void  under  the  Massachusetts  law  where  per- 
formable, as  being  in  violation  of  the  Sunday  statutes. 
The  Court  held  there  was  no  recovery,  because,  although 
the  contract  was  made  in  New  York,  it  was  to  be  per- 
formed in  Massachusetts;  and  hence  its  validity  was 
governed  by  the  law  of  that  state,  and  being  void  there, 
could  not  serve  as  the  basis  of  a  liability  in  Wisconsin. 
The  opinion  of  the  Court  shows  that  this  is  an  excep- 
tional case.  It  said:  "It  is  the  general  rule  of  the 
common  law  that  personal  contracts  are  to  be  deemed 
contracts  of  the  state  or  country  where  they  are  actually 
made.  A  well  established  exception  occurs,  however,  when 
a  contract  declares  specifically,  or  it  appears  by  impli- 
cation, that  it  is  to  be  performed  in  another  state  or 
country.  Then  its  validity,  nature,  obligation  and  effect 
is  to  be  governed  by  the  law  of  the  place  of  payment 
or  performance."  And  the  decision  was  reaffirmed  on 
a  rehearing,  when  the  Court  stated  the  principle  even 
more  strongly:  "When  a  contract  is  made  in  one  state 
or  country,  to  be  performed  in  another  state  or  country, 
it  is  to  be  regulated  by  the  laws  of  the  place  of  per- 
formance without  regard  to  the  place  at  which  it  was 
written,  signed  or  dated,  in  respect  to  its  validity,  na- 
ture, interpretation  and  effect." 

From  these  quotations,  it  is  manifest  that  if  a  con- 
tract is  made  in  one  state,  but  by  its  terms  expressly 
or  by  clear  inference,  it  is  to  be  performed  in  a  different 
state,  it  is  governed  by  the  law  of  the  state  where  per- 
formance is  to  occur,  because  in  such  a  case,  the  contract 


32  CONFLICT  OF  LAWS 

has  been  entered  into  with  a  view  to  those  laws,  and 
should  questions  arise,  that  such  laws  will  be  binding 
on  the  parties. 

Sec.  13.  The  general  proposition  is,  as  we  have  pre- 
viously explained,  that  the  law  of  the  state  where  the 
contract  is  made,  decides  all  questions  that  relate  to 
the  rights  of  the  parties.  And  in  the  preceding  discus- 
sion, it  was  shown  that  there  is  an  exception  where  the 
contract  is  made  in  one  state,  but  is  to  be  performed  in 
another.  In  such  a  case,  we  learned  that  the  laws  of 
the  state  where  the  contract  was  to  be  performed  must 
be  consulted  to  determine  the  rights  of  the  parties. 

We  are  now  in  a  position  to  consider  the  second  ex- 
ception to  the  general  proposition,  and  that  is,  that  if 
a  contract  relates  to  real  property,  it  is  governed  by 
the  law  of  the  state  where  the  property  is  located.  In 
such  a  case,  the  transaction  is  always  peculiar^  And  in 
such  a  case,  the  other  elements  in  the  transaction,  such 
as  where  the  contract  was  made,  or  where  it  is  to  be 
performed,  have  no  bearing.  In  other  words,  if  a  con- 
tract creates  rights  in  real  property,  it  is  governed  by 
the  law  of  the  state  where  the  real  property  is  located, 
that  is,  in  latin,  the  lex  loci  rei  sitae,  the  law  of  the  loca- 
tion. The  basis  of  this  exception  is  found  in  the  prin- 
ciples of  jurisdiction.  In  our  early  discussion  of  the 
subject  we  said  that  the  power  of  a  state  is  local.  That 
is,  it  extends  to  all  persons  who  are  temporarily  within 
its  limits;  and  it  extends  to  all  real  property  that,  of 
necessity,  is  permanently  within  its  limits ;  and  it  extends 
to  all  acts  done  within  its  limits.  These  are  the  impor- 
tant rules  of  jurisdiction. 

And  they  are  especially  so  in  connection  with  contracts 
relating  to  real  estate,  because,  it  is  an  absolute  rule 
that  the  rights  of  the  parties  to  a  contract  of  real  estate 
are  always  governed  by  the  law  of  its  location.  They 
never  are  and  never  can  be,  governed  by  any  other  law. 
A  person  can  be  in  one  state  one  day  and  in  another 
state  another  day,  and  thus  be  subject  to  the  laws  of 


OONTBACTS  33 

different  states.  An  act  may  be  done  in  one  state  or  it 
may  be  done  in  another  state,  and  thus  its  legal  effect 
be  regulated  by  the  laws  of  different  states.  But  not 
so  of  real  property.  It  is  fixed  and  stationary,  and 
forever  and  in  all  transactions,  subject  exclusively  to 
the  laws  of  that  particular  state  within  which  it  is  lo- 
cated, of  which  it  is  territorially  a  part,  and  under  whose 
laws  alone  title  to  it  and  possession  of  it  and  a  lien 
against  it  can  be  either  acquired  or  divested.  These  are 
the  essential  grounds  for  this  exception  where  the  con- 
tract relates  to  real  property. 

So  it  is  therefore,  that  on  principles  of  jurisdiction 
which  are  a  part  of  the  subject  of  CONFLICT  OF 
LAWS,  where  a  contract  creates  rights  in  real  property, 
the  contract  is  governed  by  the  law  of  the  location.  And 
this  rule  is  very  general.  In  such  a  case,  the  law  of  the 
location  governs  the  capacity  to  make  that  contract. 
And  its  laws  ascertain  the  interpretation  of  that  con- 
tract. And  finally,  the  law  of  the  location  must  be  re- 
ferred to  in  determining  whether  certain  acts  constitute 
a  discharge  of  the  contract.  So  it  is  then,  as  has  al- 
ready been  stated,  that  is  a  contract  directly  creates  a 
right,  title  or  interest  in  realty,  it  is  in  all  respects 
regulated  by  the  law  of  the  state  where  the  realty  is 
located,  in  spite  of  all  other  elements  in  the  transaction. 

An  interesting  case  in  which  these  principles  were  in- 
volved is  Clark  v.  Graham,  6  Wheat  577  (U.  S.),  5  L. 
Ed.  334.  The  facts  were  that  the  action  was  brought  in 
Ohio  to  determine  title  to  a  certain  tract  of  land  located 
there.  The  defendants  attempted  to  establish  title  to 
the  property  by  introducing  a  deed  and  power  of  at- 
torney, which  however,  were  executed  in  accordance  with 
the  laws  of  Virginia.  The  Court  held,  that  since  those 
contracts  created  rights  in  realty,  they  should  have  been 
executed  in  accordance  with  the  local  Ohio  law;  but  not 
being  so  executed,  the  defendants  never  acquired  a  valid 
title. 

It  is  clear  from  our  discussion  therefore,  that  a  con- 
tract that  creates  or  destroys  rights  in  real  property, 


34  CONFLICT  OF  LAWS 

is  regulated  by  the  law  of  the  location.  But  right  here 
there  is  a.  very  important  distinction.  And  that  is  that, 
while  a  contract  that  creates  or  divests  a  right  in  real 
property  is  strictly  a  local  contract,  the  point  to  be  noted 
is  that  a  contract  is  not  necessarily  local  because  it 
involves  real  property.  On  referring  to  our  study  of 
real  property,  we  find  that  in  conveyancing  there  is  a 
big  difference  between  a  personal  and  a  real  covenant 
in  a  conveyance.  Now  of  course,  a  conveyance  always 
creates  an  estate  in  the  property.  But,  occasionally  it 
also  contains  a  provision  that  is  strictly  of  a  personal 
nature.  Hence,  where  we  have  to  deal  with  a  conveyance, 
such  as  a  deed  or  a  mortgage  or  a  lease,  we  should 
carefully  separate  the  part  that  is  real  from  the  part 
that  is  personal.  That  is,  we  should  carefully  separate 
the  real  covenant  from  the  personal  covenant,  because  a 
real  covenant  either  creates  or  requires  the  doing  of  an 
act  in  reference  to  an  estate,  and  is  therefore  local,  and 
so  is  governed  by  the  law  of  the  location. 

But  on  the  other  hand,  a  personal  covenant,  simply 
requires  the  doing  of  an  act.  It  does  not  create  an 
estate.  The  act  to  be  done  has  no  direct  reference  to 
the  property,  and  since  it  is  therefore  personal,  it  is 
transitory,  and  is  govern^!  by  the  law  of  the  state  where 
the  conveyance  was  made  that  is  the  lex  loci  contractus. 
This  general  distinction  is,  it  must  be  insisted  again, 
necessary  in  the  CONFLICT  OF  LAWS.  The  author 
submits  it  in  his  own  words.  It  is  realized  however, 
that  there  will  he  difficulty  in  applying  it  in  some  cases. 
But  the  general  rule  is  that  if  a  clause  in  conveyance 
creates  an  estate  in  the  property,  that  clause  is  local, 
and  is  governed  by  the  law  of  the  location.  And  on  the 
other  hand,  if  a  clause  requires  the  doing  of  an  act  not 
in  relation  to  the  property,  but  collaterally  to  it,  it  is 
transitory,  and  is  governed  by  the  law  of  the  state  where 
the  conveyance  was  executed. 

A  case  in  point  is  Poison  v.  Stewart,  167  Mass.  211. 
i:>  N.  E  737.  The  facts  were  that  A  and  B  husband 
and  wile  resided  in  North  Carolina.    A  made  a  contract 


CONTRACTS  35 

with  B  there  to  release  all  his  rights  to  certain  real 
estate  owned  by  B  in  Massachusetts.  Under  the  North 
Carolina  law,  where  the  contract  was  made,  and  the 
parties  resided,  it  was  valid,  whereas  in  Massachusetts, 
where  the  real  property  was  located,  it  would  be  void. 
A  refused  to  comply  with  the  contract;  and  B  sued  in 
Massachusetts  to  compel  him  to  do  so.  The  Court  held 
the  action  maintainable.  It  said:  "It  is  true  that  the 
laws  of  other  states  cannot  render  valid  conveyances 
of  property  within  our  borders,  which  our  laws  say  are 
void.  But  the  same  reason  inverted  establishes  that 
the  lex  rei  sitae  cannot  control  personal  covenants  not 
purporting  to  be  a  conveyance,  between  persons  outside 
the  jurisdiction,  although  concerning  a  thing  within  it." 

This  very  case  shows  how  fine  is  the  distinction  be- 
tween real  and  personal  covenants.  In  fact,  the  difficulty 
in  distinguishing  the  two  forms  of  covenant  makes  it 
advisable  to  develop  this  distinction  more  fully.  But 
certain  principles  are  clear.  It  has  been  said  that  if  a 
contract  creates  an  estate  in  real  property,  it  is  a  local 
contract  and  hence  all  questions  arising  out  of  it  are 
governed  by  the  law  of  the  location.  Hence  if  a  deed 
or  a  mortgage  or  a  lease,  is  the  contract  in  the  case, 
their  validity  is  governed  by  the  law  of  the  location. 
And  why?  Because  a  deed  creates  an  estate,  that  is, 
legal  title  in  the  property.  And  a  mortgage  creates  a 
lien,  that  is,  an  equitable  estate  in  the  property.  And 
a  lease  creates  a  tenancy,  that  is,  the  right  of  posses- 
sion in  the  premises.  No  further  argument  is  neces- 
sary to  show  that  in  all  these  cases,  the  contracts  create 
rights  in  property,  and  hence  are  governed  by  the  law 
of  the  state  where  it  is  located. 

And  all  these  cases  are  relatively  simple.  But  this 
very  deed  or  mortgage  or  lease  generally  contains  other 
provisions.  That  is,  they  generally  require  one  of  the 
parties  to  do  a  certain  act.  Now  the  question  arises, 
is  this  particular  provision,  considered  separate  and 
apart  from  the  rest  of  the  deed,  a  real  or  personal 
covenant?    Is  it  a  local  contract  and  therefore  governed 


36  CONFLICT  OF  LAWS 

by  the  law  of  the  location?  It  is  necessarily  one  or 
the  other.  Where  there  is  a  covenant  to  do  a  certain 
act,  it  is  either  real  or  personal  depending  on  the  nature 
of  the  act.  In  this  connection,  if  the  act  has  direct 
reference  to  the  real  property,  it  is  a  real  covenant. 
If  it  has  no  direct  reference  to  the  real  property,  but 
is  merely  collateral,  it  is  personal.  For  example,  if  a 
deed  requires  a  party  to  use  the  property  for  certain 
purposes  only,  this  provision  concerns  the  property 
directly,  since  it  regulates  the  possession  of  it.  Hence, 
such  a  covenant  is  real.  Of  course,  this  covenant  does 
not  create  an  estate.  But,  it  is  to  be  remembered  that 
real  covenants  actually  include  two  general  classes.  That 
is,  if  a  covenant  creates  an  estate  it  is  real.  And 
further,  if,  as  in  the  example,  it  requires  the  doing  of 
an  act  directly  in  connection  with  the  property,  it  is 
real. 

On  the  other  hand,  a  personal  covenant  covers  only 
one  class  of  cases.  It  never  creates  an  estate  in  the 
premises.  And  it  never  requires  the  doing  of  an  act  in 
reference  to  those  premises.  The  act  to  be  done  is 
strictly  personal.  It  is  absolutely  collateral.  In  prac- 
tise, it  generally  requires  the  payment  of  money.  It  is 
the  exceptional  case,  in  other  words,  because  a  majority 
of  covenants  are  real.  Now,  on  referring  again  to  the 
case  cited,  Poison  v.  Stewart,  167  Mass.  211,  45  N.  E. 
737,  this  distinction  is  as  we  have  seen,  recognized  and 
applied.  The  covenant  in  that  case  was  personal;  be- 
cause, it  did  not  create  an  estate  in  the  property;  and 
it  did  not  require  the  doing  of  an  act  with  reference 
to  the  use  of  that  property.  On  the  other  hand,  it  re- 
quired the  party  to  execute  a  release,  an  act  which  as 
the  Court  said,  need  not  necessarily  be  done  where  the 
property  is  located,  but  could  be  done  in  any  state.  If 
this  case  involved  the  example  given  of  a  covenant  to 
use  the  property  for  certain  purposes  only,  clearly  it 
would  be  a  real  covenant,  since  property  can  be  used 
for  those  certain  purposes  only  in  the  state  where  it  is 
located.     But  that  was  not  the  situation  in  the   case. 


CONTRACTS  37 

The  contract  in  the  Poison  case  required  the  doing  of 
an  act;  that  act  was  personal;  it  was  collateral;  it  could 
be  performed  anywhere.  It  did  not  create  an  estate. 
Nor  did  it  require  the  husband  to  do  an  act  in  reference 
to  the  use  of  the  property.  Hence,  the  whole  obligation 
was  personal.  Being  personal,  it  was  governed  by  the 
law  of  North  Carolina  where  the  contract  was  made, 
and  not  the  law  of  Massachusetts,  where  the  property 
incidentally  affected  was  situated.  And  consequently, 
being  personal  and  transitory,  an  action  for  breach  of 
it  was  maintainable  in  Massachusetts  under  the  general 
law  of  Comity. 

Sec.  14.  We  have  fully  discussed  the  general  princi- 
ples that  govern  the  law  of  contracts,  and  shown  the 
application  of  the  CONFLICT  OF  LAWS  to  that  lead- 
ing subject.  But  we  have  not  completed  our  subject. 
We  have  however,  learned  that  a  contract  is  made  in 
that  state  where  the  acceptance  occurs ;  that  as  a  gen- 
eral rule,  the  contract  is  governed  by  the  laws  of  that 
state ;  excepting,  that  if  a  contract  is  made  in  one  state, 
but  performable  in  another,  it  is  governed  by  the  law 
of  the  state  of  performance;  or,  if  it  relates  directly 
to  real  property,  it  is  governed  by  the  law  of  the  loca- 
tion. These,  in  brief,  were  the  outstanding  propositions 
in  the  whole  preceding  discussion. 

Now,  in  our  discussion  of  Comity,  it  was  said  that 
Comity  is  not  the  absolute  right  of  the  party  nor  the 
constitutional  obligation  of  the  state,  but  that  principle 
of  sovereign  courtesy  wherein  one  state  enforces  a  right 
acquired  under  the  laws  of  another.  And  this  general 
principle  of  Comity  governs  contracts.  In  fact,  con- 
tracts is  the  law's  leading  subject,  and  so  it  is  then, 
that  in  the  field  of  contractual  relationship,  the  doctrine 
of  Comity  finds  most  frequent  application.  And  more 
than  that.  Not  only  does  the  rule  of  Comity  enforce 
contracts  more  frequently  than  other  rights,  but  it  has 
developed  certain  special  rules  whereby  it  will  enforce 
a  contract;  whereas  if  a  different  right  were  presented, 

47890 


38  CONFLICT  OF  LAWS 

it,  would  withhold  its  hospitality.  So  it  follows  there- 
fore, that  as  a  general  rule,  a  contract,  valid  where  made 
or  performable,  in  either  of  these  cases,  is  valid  in  all 
other  states  and  can  be  enforced  in  any  of  them  on  the 
basis  of  Comity.  No  elaboration  of  this  proposition  is 
necessary.  Its  peculiar  application  to  special  forms  of 
contract  like  Interest  and  Usury,  Sales  and  Chattel  Mort- 
gages, will  be  developed  in  subsequent  chapters.  It  is 
sufficient  to  state  here,  as  has  been  pointed  out,  that 
if  by  its  proper  law,  a  contract  has  been  made,  its 
rights  will  be  enforced  in  any  state  in  which  the  nec- 
essary jurisdiction  can  be  acquired.  Of  course,  as  we 
have  seen,  if  the  contract  relates  directly  to  real  prop- 
erty, it  is  in  all  respects,  not  only  as  to  right  but  also 
as  to  remedy,  governed  by  the  law  of  the  location.  In 
our  development  of  this  particular  topic,  we  said  that 
a  real  property  contract  is,  notwithstanding  all  other 
elements  in  the  transaction,  governed  by  the  law  of  its 
location.  That  law  defines  the  rights  of  the  parties.  It 
does  more.  It  regulates  their  remedies  under  the  con- 
tract. It  does  more  still.  It  operates  on  that  contract 
as  to  right  and  remedy  so  completely  and  so  exclusively 
that  the  right  it  creates  must  be  enforced  in  that  state. 
It  cannot  be  enforced  in  any  other  state.  The  right  is 
therefore  not  transitory.  And  hence,  since  it  is  not  a 
transitory  right,  an  action  to  enforce  a  local  contract, 
as  to  foreclose  a  mortgage,  cannot  be  brought  in  any 
other  state.  The  principles  of  Comity  do  not  apply 
to  it.  They  cannot  apply  to  it,  because  of  the  jurisdic- 
tional impediment,  that  local  actions  can  be  brought 
only  in  the  state  where  the  real  property  is  located. 

So  on  the  contrary,  a.  contract  which  is  not  local  is 
transitory  and  can  be  redressed  by  action  in  all  states. 
If  it  is  valid  by  the  law  of  the  state  where  it  was  made 
or  where  it  was  to  be  performed,  it  has  a  general  val- 
idity throughout  the  states  of  the  Union.  And  this  is 
so  even  though  if  it  were  made  in  the  state  where  ac- 
tion is  brought,  it  would  be  invalid.  This  is  certainly 
an  extreme  application  of  the  Comity  rule.     But  it  is 


CONTRACTS  39 

settled  law.  So  therefore,  if  a  contract  is  valid  in  the 
state  where  it  is  made  or  is  performable,  even  though 
it  would  be  void  if  made  or  performable  in  the  state 
where  the  action  is  brought,  it  is  an  enforcible  obligation. 
The  fact  that  the  contract  violates  the  law  of  the  forum, 
is  no  objection  to  its  enforcement,  as  long  as  it  com- 
plies with  the  law  of  the  contract.  The  difference  be- 
tween the  law  of  the  contract  and  the  law  of  the  forum 
is  not  a  difference  in  their  public  policy.  And  hence, 
where  there  is  no  question  of  public  policy  involved, 
the  mere  fact  that  a  foreign  contract  is  in  contravention 
of  a  local  law,  is  no  objection  to  its  enforcement.  The 
whole  inquiry  on  the  other  hand,  is,  does  the  contract 
conform  to  the  law  of  the  state  where  made?  If  it 
does,  it  is  enforcible  in  our  state,  even  though  it  does 
not  conform  to  our  law,  and  would  be  void  had  it  been 
made  here  originally. 

A  verv  good  illustration  of  the  principle  can  be  found 
in  Thompson  v.  Taylor,  66  N.  J.  E.  253,  49  Atl.  544. 
In  that  case  A,  a  married  woman,  resided  in  New 
Jersey  with  B  her  husband.  She  executed  a  contract 
through  him  in  New  York  to  C,  a  third  party  there. 
Later  C  sued  A  in  New  Jersey  to  recover  on  the  con- 
tract. Under  the  New  Jersey  law,  where  she  was  dom- 
iciled, the  contract  would  be  void;  whereas  by  New 
York  law,  where  she  made  it,  it  was  valid.  The  Court 
held  there  was  a  recovery.  It  said  with  reference  to 
the  contract:  "We  are  bound  by  the  principles  of  Com- 
ity to  recognze  its  validity,  unless  it  clearly  contravenes 
the  principles  of  public  morality."  This  is  a  leading 
case.  In  this  case  there  was  a  contract  made  in  New 
York.  The  action  to  enforce  it  however,  was  brought 
in  New  Jersey.  And  there  was  a  CONFLICT  OF  LAWS, 
because  New  Jersey  prohibited  the  making  of  such  a 
contract,  while  New  York  allowed  it.  Hence,  there  was 
a  material  difference  between  the  laws  of  these  two 
states ;  but  that  did  not  create  a  difference  in  their  public 
policy;  so  that  the  general  policy  of  those  two  states 
was  not  different,  but  on  the  other  hand  similar,  in  that 


40  CONFLICT  OF  LAWS 

contracts  should  be  enforced  if  it  is  possible  to  do  so. 
And  therefore  it  was  enforced,  because,  being  valid 
where  made  in  New  York,  it  was  valid  and  enforcible 
in  New  Jersey  where  action  was  brought,  it  not  violat- 
ing any  of  the  moral  standards  prevailing  in  that  state, 
but  being  merely  at  variance  with  its  law  on  technical 
grounds. 

And  in  this  connection,  it  must  again  be  emphasized 
that  the  domicile  of  the  parties  does  not  in  any  way 
influence  the  law  that  governs  contracts.  The  law  of 
the  domicile  is  decisive  simply  where  the  personal  status 
of  a  party  is  involved  in  a  case,  as  in  marriage;  but, 
where  the  transaction  is  commercial,  as  in  contracts, 
the  law  of  the  state  where  it  is  made  prevails.  Let  us 
adhere  to  these  general  principles,  so  there  will  be  no 
difficulty  in  determining  the  proper  law  in  a  given  state 
of  facts.  And  incidentally,  in  our  discussion  of  the 
CONFLICT  OF  LAWS  or  of  any  of  its  subordinate 
topics,  this  has  been  and  will  be  our  policy.  This  sub- 
ject is  built  up  on  a  basis  of  certain  leading  principles. 
Of  course,  there  are  exceptions.  But  the  author  sub- 
mits that  we  should  first  learn  the  fundamentals  and 
then  by  deeper  study,  attempt  a  mastery  of  the  subtler 
and  finer  distinctions  that  make  this  subject  one  of 
the  most  technical  in  the  law. 

Sec.  15.  In  the  foregoing  discussion,  it  was  shown  that 
if  a  contract  is  valid  in  one  state,  it  is  enforcible  in 
all  states  on  the  ground  of  Comity.  That  is,  we  showed 
that  the  general  rule  of  Comity  applies  to  contracts. 
And  in  our  introductory  discussion  of  Comity,  we  said 
that  there  is  an  exception  in  that  the  privilege  of  Comity 
cannot  be  invoked  if  to  do  so  would  violate  the  local 
public  policy  of  the  state  where  the  action  is  brought. 
Just  as  the  rule  of  Comity  is  applied  in  contracts,  so 
is  the  exception.  Contracts  occasionally  do  involve  in 
their  enforcement  questions  of  public  policy,  and  if  that 
public  policy,  as  ascertained  from  the  laws  of  the  forum, 
would  be  impugned  by  enforcing  the  agreement,  it  will 


CONTRACTS  41 

not  be  enforced.  So  therefore,  a  contract  valid  in  one 
state  wall  not,  under  this  single  exception,  be  enforced 
in  another  state,  if  it  violates  its  local  public  policy. 

Now,  then,  when  does  a  contract  valid  in  one  state, 
violate  the  public  policy  of  another?  This  is  very  simple. 
It  violates  its  public  policy  when  the  right  it  creates 
is  in  violation  of  the  moral  standards  of  the  state.  Refer 
briefly  to  our  discussion  of  Comity.  We  stated  that  as 
a  rule,  all  rights  acquired  in  one  state  are  enforcible 
in  other  states.  But,  by  way  of  exception,  we  also  said, 
that  a  right  arising  in  one  state  is  not  enforcible  if  it 
violates  the  public  policy  of  the  forum.  And  we  said 
the  rule  and  its  exception  dominate  the  whole  subject 
of  CONFLICT  OF  LAWS.  So  therefore,  that  rule  and 
that  exception  govern  the  law  of  contracts.  The  rule 
and  the  exception  we  have  already  explained  in  our 
discussion  of  Comity.  And  as  to  the  exception,  it  is  not 
necessary  to  again  insist  here  that  public  policy  is  es- 
sentially a  moral  question.  The  vital  point  therefore, 
in  deciding  whether  a  contract  made  in  one  state  is  en- 
forcible in  another,  is  to  determine  whether  it  violates 
local  public  policy.  That  is,  consult  its  laws  as  a  whole, 
and  test  the  contract  by  the  light  of  those  laws;  and 
if  its  obligations  violate  moral  principles  wThich  those 
laws  declare,  it  antagonizes  its  local  public  policy  and 
is  void.  Of  course,  all  states  will  enforce  contracts  if 
'in  doing  so  it  will  aid  the  party,  and  further  its  own 
commercial  interests,  and  subserve  the  cause  of  justice, 
but  no  state  will  surrender  its  sovereign  dignity  by  en- 
forcing a  contract  the  rights  and  obligations  of  which 
are  a  moral  scandal  under  its  laws. 

This  exception  to  the  general  principle  is  forcefully 
illustrated  in  Flagg  v.  Baldwin,  38  N.  J.  E.  219,  48  Am. 
E.  309.  The  facts  were,  that  A  sued  B  and  C  in  New 
Jersey,  to  foreclose  a  mortgage  given  to  secure  certain 
notes  executed  to  A  by  the  defendants  in  New  York. 
The  contract  between  the  parties  was  a  gambling  trans- 
action in  that  it  involved  speculation  in  stocks  on  mar- 
gins, and  the  note  and  mortgage  were  given  to  A  by  B 


42  CONFLICT  OF  LAWS 

and  0  to  cover  all  losses.  The  Court  held  there  was  no 
recovery.  The  opinion  is  worthy  of  extensive  quotation : 
"A  contract  valid  where  made  will  not  be  enforced  by 
the  courts  of  another  country,  if  in  doing  so  they  must 
violate  the  plain  public  policy  of  the  country  whose 
jurisdiction  is  involved  to  enforce  it. ' '  And:  "It  seems 
to  me  that  no  Court  can  on  full  consideration,  deliber- 
ately adopt  a  rule  that  will  require  the  enforcement  of 
foreign  contracts  violative  of  the  public  laws  and  sub- 
versive of  the  distinct  public  policy  of  the  country  whose 
laws  and  policy  they  are  bound  to  enforce. ' '  And  finally : 
"Our  law  against  gambling  goes  further  than  to  merely 
prohibit  the  vice  or  avoid  contracts  tainted  with  it.  It 
declares  it  unlawful,  and  so  puts  the  contract  beyond 
the  probation  of  the  laws  or  the  right  of  appeal  to  the 
courts.  The  reason  and  object  of  the  law  are  obvious. 
The  vice  aimed  at  is  not  only  injurious  to  the  person 
who  games,  but  wastes  his  property,  to  the  injury  of 
those  dependent  on  him  and  those  who  are  to  succeed 
to  him.  It  has  its  more  public  aspect,  for  if  it  be  an- 
nounced that  a  trustee  has  been  false  to  his  trust,  or 
a  public  officer  has  embezzled  public  funds,  by  common 
consent,  the  first  inquiry  is  whether  the  defaulter  has 
been  wasting  his  property  in  gambling.  In  my  judgment, 
our  law  against  gambling  is  of  such  a  character,  and  is 
designed  for  the  prevention  of  vice,  producing  injury 
so  widespread  in  its  effect,  the  policy  evidenced  thereby 
is  of  such  public  interest  that  Comity  does  not  require 
us  to  here  enforce  a  contract  which  is  so  stigmatized  as 
unlawful,  and  so  prohibited." 

Of  the  thousands  of  cases  that  the  author  in  his 
laborious  search  for  material  has  examined  in  the 
library,  he  has  found  no  case  in  which  a  principle  of 
law  is  more  forcefully  and  convincingly  and  masterfully 
presented,  than  in  Flagg  v.  Baldwin.  As  a  tribute  to 
the  Court,  and  especially  the  Judge  who  expressed  its 
opinion  in  the  words  that  have  been  quoted,  the  author 
abstains  from  further  explanation  of  the  case.  It  proves 
the  exception. 


CONTRACTS  43 

Sec.  16.  We  now  close  our  discussion  of  contracts  by 
a  brief  explanation  of  the  final  proposition  in  the  syl- 
labus. That  is,  that  a  contract  void  where  it  is  made 
or  is  to  be  performed,  is  void  in  all  states.  In  view 
of  all  that  has  been  said,  this  principle  requires  no 
elaboration.  In  fact,  the  principle  has  already  been  ex- 
plained and  illustrated,  but  in  a  slightly  different  form 
in  the  sections  preceding.  That  is,  we  have  previously 
stated  that  if  a  contract  is  valid  where  it  is  made  or 
is  to  be  performed,  it  is  valid  in  all  states;  and  we 
illustrated  our  proposition  by  the  case  of  Milliken  v. 
Pratt,  125  Mass.  374,  28  Am.  R.  241.  Now,  this  proposi- 
tion is  merely  its  converse.  It  merely  states  in  negative 
terms  a  fundamental  that  has  been  previously  stated 
in  positive  terms.  It  is  therefore  not  necessary  to  state 
that  which  is  perfectly  clear.  It  is  not  necessary  to  re- 
call that  a  contract  is  either  valid  or  void,  and  if  it  is 
valid  it  is  enforcible  everywhere;  while  if  it  is  void, 
there  is  really  no  contract,  there  is  no  right  arising 
from  it,  and  consequently  there  is  no  cause  of  action 
to  enforce  anywhere.  But  the  author  in  his  teaching 
experience,  has  very  frequently  stated  legal  principles 
that  were  so  simple,  that  their  very  simplicity  aroused 
a  suspicion  as  to  their  soundness,  so  he  was  required 
to  cite  authority.  Perhaps  therefore,  the  citation  of  a 
few  cases  will  not  be  inappropriate  by  way  of  illustra- 
tion. 

There  is  the  case  of  Burr  v.  Becller,  264  HI.  230,  106 
N.  E.  206  which,  by  the  way,  involved  several  very  in- 
teresting questions.  We  shall  make  a  careful  analysis 
of  these  principles,  although  the  facts  were  very  com- 
plicated. Briefly  however,  the  situation  was  that  A,  a 
married  woman,  residing  in  Illinois,  while  temporarily 
in  Florida,  executed  there  a  note  and  a  deed  of  trust 
to  B,  to  secure  a  certain  debt  incurred  by  her  husband 
C.  The  husband  having  failed  to  pay  the  debt,  B,  the 
holder  of  the  note  and  deed  of  trust,  brought  an  action 
in  Illinois  to  foreclose  and  recover  upon  these  contracts. 
The  principal  defense  of  the  wife  A,  in  the  proceeding, 


44  CONFLICT  OP  LAWS 

was  that  these  contracts  were  made  in  Florida,  under 
whose  laws  they  were  void,  because  of  her  marriage, 
and  being  void  there  where  made,  were  void  in  Illinois, 
under  the  general  law  of  Comity.  The  Court  held  there 
was  no  recovery;  first,  because  the  note  and  deed  of 
trust  were  made  in  Florida;  second,  that  having  been 
made  there,  they  were  governed  by  its  law  and  hence 
void;  and  thirdly,  that  the  note  being  the  principal  con- 
tract and  the  deed  of  trust  merely  incidental  to  it,  the 
location  of  the  real  property  had  no  bearing  in  the  case. 
But,  let  us  hear  the  Court,  especially  on  the  third  prin- 
ciple: "The  validity,  construction,  force  and  effect  of 
instruments  affecting  the  title  to  land  depend  on  the 
law  of  the  state  where  the  land  lies.  But,  If  the  note 
was  void,  the  trust  deed  which  was  incidental  and  in- 
tended to  secure  a  performance  of  the  obligation  created 
by  the  note,  could  not  be  enforced.  It  is  a  universal 
rule  that  the  validity  of  a  contract  is  to  be  determined 
by  the  law  of  the  place  where  it  is  made,  and  if  it  is  not 
valid  there,  it  will  not  be  enforced  in  any  other  state 
in  which  it  would  have  been  valid  if  made  there." 

These  principles  are  sound  law.  The  decision  in  the 
case,  in  substance,  is  that  if  a  contract  is  void  where 
it  is  made  it  is  void  in  another  state.  But  the  case  is 
stronger  still.  If  a  contract  is  void  where  it  is  made, 
it  is  void  in  another  state,  even  though  it  is  not  in 
violation  of  its  public  policy  or  in  contravention  of  its 
laws  and  therefore  would  be  valid  if  made  there.  And 
there  is  still  another  element  of  strength  in  the  case. 
It  holds  not  only  that  if  a  contract  is  void  in  one  state 
it  is  void  in  another,  and  that  it  is  void  even  though 
its  own  laws  would  authorize  it;  but  furthermore,  that 
it  is  nevertheless  void  even  though  the  contract  relates 
to  real  property  in  the  very  state  where  the  action  is 
brought. 

And  why  is  this  so?  On  referring  to  our  study  of  real 
property  contracts,  the  point  strongly  emphasized  was 
that  if  a  contract  creates  an  estate  in  real  property  it 
is  a  local  contract,  and  is  governed  by  the  lex  loci  rei 


CONTRACTS  45 

sitae.  Certainly  this  deed  of  trust  was  such  a  contract. 
It  was  executed  in  Florida,  but  it  created  an  estate  in 
Illinois  real  property.  Now  then,  why  in  this  case  was 
it  not  governed  by  Illinois  law?  Is  there  a  distinction? 
Yes,  there  is  a  distinction.  And  what  is  it?  It  is  this, 
that  where  the  contract  in  the  case  in  simply  a  real 
property  contract  alone,  all  questions  are  governed  by 
the  law  of  the  location.  Hence,  if  in  this  case  there  was 
no  note,  but  just  a  trust  deed,  then  the  capacity  of  the 
defendant  to  execute  it  would  be  governed  by  the  law 
of  the  location.  But  on  the  other  hand,  where  there  are 
two  contracts  in  the  case,  a  note  which  is  the  principal 
contract,  and  a  trust  deed  which  is  incidental  to  it,  all 
questions  as  to  either  and  both  these  contracts  are  gov- 
erned by  the  law  of  the  state  where  they  are  made. 
That  was  this  very  case.  There  was  a  note,  the  per- 
sonal contract.  And  there  was  the  deed  of  trust,  which 
was  merely  its  security,  a  derivative  contract.  The  note 
legally  as  a  personal  contract,  in  this  peculiar  situation, 
prevails  over  the  deed  of  trust.  Now  then,  since  the 
note  is  the  main  contract  and  the  deed  of  trust  the 
subsidiary  contract,  the  transaction  is  in  the  CONFLICT 
OF  LAWS,  deemed  to  be  substantially  a  personal  con- 
tract, and  therefore  governed  by  those  laws  where  it 
was  made.  The  validity  of  the  security  always  depends 
on  validity  of  the  note. 

Let  me  summarize  here,  while  there  is  opportunitv, 
the  whole  subject  of  CONFLICT  OF  LAWS  as  to  real 
property  contracts.  Briefly,  these  are  the  principles. 
First,  where  a  transaction  consists  of  a  real  property 
contract  only,  which  creates  an  estate  therein,  it  is 
governed  by  the  law  of  the  location.  Hence,  in  Clark 
v.  Graham,  6  Wheat  577  (U.  S.),  5  L.  Ed.  334  it  was 
held  that  the  validity  of  a  deed  to  real  property  is 
regulated  by  the  law  of  the  state  where  it  is  located. 
Second,  where  a  transaction  simply  relates  to  real  prop- 
erty indirectly,  but  requires  an  act  to  be  done  that  does 
not  concern  the  use  of  it,  it  is  a  personal  contract. 
Hence  in  Poison  v.  Stewart,  167  Mass.  211,  45  N.  E.  737, 


46  CONFLICT  OP  LAWS 

it  was  held  that  a  contract  to  deliver  a  release  of  rights 
to  real  property  was  essentially  a  personal  contract. 
And  thirdly,  where  a  transaction  consists  of  a  note  and 
its  security,  it  is  essentially  a  personal  contract,  and  is 
governed  by  the  law  of  the  state  where  the  note  was 
delivered.  Hence,  in  Burr  v.  Beckler,  264  111.  230,  106 
N.  E.  206,  it  was  held  that  the  validity  of  the  note  and 
deed  of  trust  that  secured  it,  were  governed  by  the  law 
of  the  state  where  the  note  was  delivered,  and  not  by 
the  law  of  the  state  where  the  real  property  was  located. 
Can  I  make  these  distinctions  clearer?  Only  by  a 
final  word  of  caution.  And  that  is,  that  if  a  contract 
is  to  be  enforced,  its  validity  must  first  be  determined. 
This  is  a  necessary  preliminary  question.  And  how  is 
its  validity  determined?  Simply  by  testing  it  under  the 
laws  of  the  state  that  governs  it.  If  it  is  void,  there- 
fore, where  it  is  made  or  is  performable,  then  it  is  void 
in  all  states.  But  real  property  contracts  are  peculiar. 
The  peculiarity  in  them  too  is,  that  because  a  contract 
concerns  real  property,  we  instantly  infer  it  is  governed 
by  the  local  law.  That  is,  as  we  have  seen,  not  so  in 
all  cases.  If  a  contract  creates  an  estate,  however,  it 
is  a  real  property  contract.  And  if  it  requires  the  doing 
of  an  act  in  reference  to  the  use  of  real  property,  it 
is  a  real  property  contract.  But  in  all  other  cases,  even 
though  real  property  is  involved,  it  is  a  personal  contract. 
If  that  very  contract  that  creates  an  estate  and  restricts 
the  use  that  can  be  made  of  that  property,  imposes  a 
duty  that  is  wholly  collateral,  that  part  of  the  contract 
is  severable  and  personal.  And  again,  if  a  transaction 
consists  of  a  note  and  its  security,  such  as  a  deed  of 
trust  or  a  mortgage,  such  a  contract  is  essentially  a 
personal  contract,  because  of  the  special  rule  in  real 
property  that  the  note  is  the  principal  contract  and  the 
security  its  mere  incident,  and  the  note  being  substan- 
tially the  whole  transaction  and  the  security  just  a 
means  for  its  payment,  the  validity  of  the  security  is 
governed  by  the  law  that  regulates  the  note. 


REMEDIES 

CHAPTER  V 

Rule:  THE  REMEDIES  OF  THE  PARTIES  TO  A  CONTRACT  ARE 
REGULATED  BY  LAW  OF  STATE  WHERE  ACTION  TO  ENFORCE 
IT  IS  BROUGHT.l 

Rule:  THESE  TOPICS  PERTAIN  TO  THE  REMEDY:  FORM  OF 
THE  ACTION2;  RULES  OF  EVIDENCE3;  STATUTE  OF  FRAUDS4; 
STATUTE  OF  LIMITATIONS.5 


Sec.  17.  There  is  a  general  principle  that  underlies 
the  whole  structure  of  the  subject  of  Contracts,  and 
that  is  that  the  remedy  to  enforce  it  is  always  regulated 
by  the  law  of  the  forum.     This  principle  is  really  uni- 


1— DAVIS  VS.  MORTON,  5 
BUSH.     160     (KY.),     96    AM.    D. 

345;  (Contra:  Vermont  Bank  vs. 
Porter,  5  Day.  316  (Conn.),  5  Am. 
D.  157;)  Robinson  vs.  Queen,  87 
Tenn.  445,  11  S.  W.  38;  Security 
Co.  vs.  Eyer,  36  Neb.  507,  54  N. 
W.  838;  RUHE  VS.  BUCK,  124 
MO.  178,  27  S.  W.  412;  Mack  vs. 
Quarries  Co.,  57  Oh.  St.  463,  49 
N.  E.  697;  Walling  vs.  Grocery 
Co.,  41  Fla.  479,  27  S.  46;  State 
Bank  of  Eldorado  vs.  Maxson,  123 
Mich.  250,  82  N.  W.  31;  Stack  vs. 
Lum.  &  Ced.  Co.,  151  Mich.  21,  114 
N.    W.    876. 

2— BURCHARD  VS.  DUNBAR, 
82  ILL.  450,  25  AM.  R.  334. 

3—DOWNER  VS.  CHESE- 
BROUGH,  36  CONN.  39,  4  AM.  R. 
29. 

4— HEATON  VS.  ELDREDGE, 
56  OH.  ST.  87,  46  N.  E.  638; 
Contra:    COCHRAN   VS.   WARD, 


5  IND.  APP.  89,  29  N.  E.  795,  31 
N.  E.  581;  Miller  vs.  Wilson,  140 
111.  523,  34  N.  E.  1111;  Wolf  vs. 
Burke,  18  Colo.  264,  32  Pac.  427; 
Halloran  vs.  Br'g  Co.,  137  Minn. 
141,  162  N.  W.  1082;  See:  Sat- 
terthwaite  vs.  Doughty,  Busbees 
Law  314  (N.  C),  59  Am.  D.  554; 
Emery  vs.  Burbank,  163  Mass. 
326,  39  N.  E.  126;  Third  Nat. 
Bank  of  N.  Y.  vs.  Steel,  129  Mich. 
434,   88  N.  W.  1050. 

5— PEARSALL  VS.  DWIGHT,  2 
MASS.  84,  3  AM.  D.  35;  Bulger 
vs.  Roche,  11  Pick.  36  (Mass.),  22 
Am.  D.  359;  Don.  vs.  Lippmann,  5 
CI.  &  Fin.  1,  5  E.  R.  C.  930;  HEN- 
DRICKS VS.  COMSTOCK,  12 
IND.  238,  74  AM.  D.  205;  BROV/N 
VS.  HATHAWAY,  73  W.  VA.  605, 
80  S.  E.  959;  See:  BRUNS- 
WICK TERM.  CO.  VS.  BANK,  40 
C.   C.    A.    22,    99   FED.    635. 


47 


48  CONFLICT  OF  LAWS 

versal,  because  it  is  qualified  by  no  exception.  "We  have 
seen,  that  with  respect  to  the  rights  of  the  parties,  they 
are  governed  either  by  the  law  of  the  state  where  it 
was  made;  or  where  it  was  to  be  performed;  or  where 
the  real  property  was  located.  But  as  to  the  remedy, 
there  is  only  one  possible  applicatory  law,  and  that  is 
the  law  of  the  forum  where  the  action  is  on  trial.  And 
there  is  on  careful  analysis,  a  clear  distinction  in  fact 
between  a  right  and  remedy.  Comity  enforces  a  right 
only.  And  in  doing  so,  a  state  applies  the  laws  of  an- 
other state,  and  not  its  own.  But  when  a  question  of 
remedy  is  presented,  it  applies  its  own  laws.  Its  own 
law  of  procedure  is  in  such  a  case  consulted,  because 
it  is  able  to  administer  its  own  system  of  practise  more 
effectively  than  any  other  system.  And,  since  the  party 
suing  is  asking  that  a  right  be  enforced,  he  must  take 
the  remedy  as  he  finds  it  in  the  state  where  he  brings 
his  action.  He  can  not  insist  that  the  state  where  he 
sues  afford  him  a  different  form  of  remedy,  in  its  Com- 
ity, than  it  affords  to  its  own  citizens.  So  therefore, 
the  procedure  that  governs  an  action  in  contract  is  that 
system  of  procedure  in  force  in  the  state  where  the 
action  is  brought. 

And  this  law  of  procedure  is  broad.  It  includes  trial 
practise  in  all  its  stages.  It  includes  proceedings  at 
the  trial.  It  includes  more.  Within  its  scope  come 
even  those  proceedings  that  are  preliminary  or  subse- 
quent to  the  trial.  It  embraces  the  doctrines  of  plead- 
ing and  the  principles  of  evidence  and  the  rules  of  prac- 
tice, all  too  numerous  to  mention.  In  short,  all  ques- 
tions that  do  not  relate  to  the  rights  are  remedial,  and 
are  regulated  by  the  law  of  the  forum. 

An  interesting  case  in  which  the  point  involved  was 
whether  the  question  was  substantive  or  remedial,  is 
Euhe  v.  Buck,  124  Mo.  178,  27  S.  W.  412.  The  facts 
were,  that  A  and  B,  husband  and  wife  resided  in  Mis- 
souri, where  they  were  partners  in  business.  They  made 
a  contract  with  C  in  North  Dakota;  and  having  failed 
to  pay,  C  brought  attachment  proceedings  against  B, 


REMEDIES  40 

the  wife,  in  Missouri  to  seize  and  sell  property  she 
owned  there  to  pay  the  judgment.  The  Missouri  law  how- 
ever, prohibited  attachments  against  a  married  woman, 
and  the  Court  dismissed  the  proceedings,  holding  that 
whether  attachment  can  be  brought  is  a  question  that 
concerns  the  remedy.  Now  this  case  is  clear.  The 
contract  was  made  in  North  Dakota.  Action  to  enforce 
it  however,  was  brought  in  Missouri.  Therefore,  since 
Missouri  was  the  place  of  trial,  its  laws  decided  all 
remedial  questions.  Attachment  is  as  we  know,  simply 
a  proceeding  preliminary  to  the  trial,  to  seize  and  hold 
property  so  that  the  judgment  can  be  paid.  It  is  in 
other  words,  simply  a  means  of  enforcing  the  contract. 
It  is  a  privilege  created  by  law,  and  does  not  arise  out 
of  the  contract,  and  consequently  is  in  no  sense  sub- 
stantive. 

There  is  no  way  however,  by  which  a  substantive  or 
a  remedial  question  can  be  readily  recognized.  Each 
case  depends  more  or  less  on  its  own  facts.  Of  course, 
the  general  rule  is  that  if  a  question  pertains  to  the 
rights  of  the  parties  it  is  governed  by  the  law  of  the 
forum.  But  there  is  no  specific  method  by  which  these 
two  questions  can  be  categorically  separated.  However, 
the  decisions  of  the  Courts  show  that  certain  questions 
that  generally  arise  on  the  trial  of  an  action  are  sub- 
stantive, while  certain  others  are  remedial.  It  is  be- 
lieved that  if  we  refer  to  a  few  concrete  cases  we  can 
clarify  the  subject.  Let  us  take  up  a  few  of  these 
specific  questions  separately  in  the  ensuing  sections. 

Sec.  18.  In  Bur  chard  v.  Dunbar,  82  HI.  450,  25  Am. 
R.  334,  the  facts  were,  that  A  and  B,  husband  and  wife, 
made  a  note  in  New  York  State  to  C.  Under  the  New  York 
Law,  an  action  could,  if  it  were  instituted  in  that  State, 
be  brought  against  the  wife  either  at  law  or  in  equity. 
But  under  the  Illinois  law,  an  action  against  the  wife 
could  be  brought  only  in  equity.  Now,  the  action  here 
was  begun  in  Illinois.  The  question  was,  can  B,  the 
wife,  be  sued  in  Illinois  either  at  law  or  in  equity,  or  in 


50  CONFLICT  OP  LAWS 

equity  only?  In  other  words,  does  the  form  of  the  ac- 
tion deal  with  the  right  or  the  remedy?  The  Court 
held  that  the  form  of  the  action  is  remedial,  and  is 
regulated  by  the  law  of  Illinois  where  such  action  was 
brought;  and  hence  she  could  be  sued  there  only  in 
equity,  as  allowed  by  its  laws.  Hence,  we  can  infer 
that  a  question  that  pertains  to  the  form  of  the  remedy, 
is  a  remedial  question.  It  does  not  deal  with  the  rights 
of  the  parties,  but  simply  prescribes  the  proper  form 
of  proceeding  by  which  those  rights  can  be  enforced. 
Certainly  therefore,  whether  an  action  can  be  legal  or 
equitable;  or  in  tort  or  contract;  are  questions  that 
pertain  to  the  form  of  the  remedy. 

Sec.  19.  Another  case  that  involved  a  remedial  and 
not  a  substantive  question,  is  Downer  v.  Chesebrough, 
36  Conn.  39,  4  Am.  E.  29.  The  facts  were  that  A  and  B 
indorsed  a  certain  note  in  New  York.  C,  the  holder 
brought  action  in  Connecticut  against  A,  one  of  them, 
to  recover  the  value  of  the  note.  The  material  fact  in 
the  case  was  that  when  A  indorsed  the  note  to  C,  they 
orally  agreed  that  A  was  not  to  be  held  liable.  Under 
the  New  York  law,  where  the  note  was  indorsed,  parol 
evidence  to  modify  a  writing  would  not  be  admissible; 
whereas  under  Connecticut  law,  where  the  action  was 
brought,  such  parol  evidence  in  a  special  case  like  this, 
would  be  admitted.  The  Court  held  that  whether  cer- 
tain evidence  is  admissible  or  not  is  a  remedial  question, 
and  hence  governed  by  the  law  of  the  forum;  and  since 
the  Connecticut  law  where  the  action  was  brought  al- 
lowed the  evidence,  it  could  be  introduced  here  to  ex- 
onerate the  indorser.  So  therefore,  our  inference  from 
this  case  is  that  questions  of  evidence  pertain  to  the 
remedy  and  are  regulated  by  the  law  of  the  forum. 
The  law  of  evidence  certainly  does  not  pertain  to  the 
rights  of  the  parties,  but  merely  to  the  judicial  means 
by  which  those  rights  are  to  be  proved  in  Court. 

Sec.  20.    A  still  more  valuable  case  in  which  a  ques- 


EEMEDIES  51 

tion  as  to  the  remedy  was  involved  is  Heaton  v.  Eldredge, 
56  Oh.  St.  87,  46  N.  E.  638.  The  facts  tersely,  were 
that  an  action  was  brought  in  Ohio  to  recover  on  an 
oral  contract  made  in  Pennsylvania.  Under  the  Ohio 
law,  such  a  contract  must  be  in  writing  by  its  Statute 
of  Frauds,  while  under  the  Pennsylvania  law,  it  would 
be  enforcible  though  in  oral  form.  The  Ohio  Court  held 
there  was  no  recovery.  It  said:  "When  the  required 
evidence  is  lacking,  the  courts  must  refuse  its  enforce- 
ment of  the  contract,  and  it  seems  clear  that  such  a 
statutory  regulation  prescribing  the  mode  or  measure 
of  proof  necessary  to  maintain  an  action  or  defense 
pertains  to  the  remedy/'  This  is  a  leading  case.  The 
decision  is,  that  the  question  as  to  whether  the  Statute 
of  Frauds  applies  to  a  case  is  purely  procedural,  and 
is  regulated  by  the  law  of  the  state  where  the  action 
is  brought.  And  since  in  this  case,  the  contract  did  not 
comply  with  the  Statute  of  Frauds  of  Ohio,  it  was  un- 
enforcible.  The  Statute  of  Frauds  pertains  therefore 
to  the  remedy,  and  not  to  the  right.  It  is  in  fact,  as 
the  Court  pointed  out,  a  statutory  rule  of  evidence  that 
requires  the  production  of  a  writing  to  prove  that  there 
was  a  contract,  and  if  the  requisite  proof  is  not  forth- 
coming, the  contract  is  not  sufficiently  established. 

Our  conclusion  therefore  is  that  the  Statute  of  Frauds 
is  procedural.  It  relates  to  the  remedy.  It  enacts  that 
a  certain  species  of  evidence  must  be  shown  to  prove 
the  contract;  and  it  provides  that  if  that  kind  of  evi- 
dence is  not  offered,  the  contract  fails  of  proof  on  tech- 
nical grounds,  regardless  of  its  validity  in  any  other 
state,  and  hence,  as  the  State  of  Frauds  itself  provides, 
"No  action  shall  be  brought"  on  such  a  contract.  Cer- 
tainly a  Statute,  like  the  Statute  of  Frauds,  that  re- 
quires a  writing  as  proof  of  a  contract,  and  then  provides 
that  if  that  writing  is  not  produced  on  the  trial,  "No 
action  shall  be  brought",  is  remedial.  It  regulates  the 
procedure  in  the  trial  of  the  action.  It  prescribes  the 
medium  and  the  measure  of  proof  necessary  in  the  trial 
of  the  action.    And  if  the  party  suing  fails  to  comply 


52  CONFLICT  OF  LAWS 

with  its  mandate,  ''No  action  shall  be  brought";  that 
is,  no  remedy  shall  be  available  to  him  in  the  state. 
So  it  is  therefore,  that  the  Statute  of  Frauds  pertains 
to  the  remedy.  And  so,  whether  the  Statute  of  Frauds 
applies  to  an  action  is  governed  by  the  law  of  the  forum. 
And  necessarily  the  terms  of  that  particular  Statute  of 
Frauds  must  be  consulted  on  the  trial  of  the  case. 

And  those  of  us  who  have  studied  contracts  will  re- 
member that  the  Statute  of  Frauds  is  very  general.  It 
requires  a  large  class  of  contracts  to  be  written.  And 
if  they  are  not  written,  whether  they  relate  to  surety- 
ship, or  personalty,  or  realty,  or  any  other  subject,  they 
are  not  enforcible.  The  purpose  of  the  Statute,  its 
history,  and  in  fact  its  very  phraseology  shows,  is  to 
prevent  fraud.  It  aims  to  make  it  impossible  to  prove 
a  contract  by  uncertain,  oral,  evidence.  It  aims  to  re- 
quire written,  definite,  satisfactory  proof  that  there  was 
a  contract,  and  hence  the  Statute  relates  directly  to  the 
mode  of  proof.  It  is  essentially  evidentiary.  It  is  dis- 
tinctively procedural;  going  as  it  does,  not  to  the  exist- 
ence of  the  contract,  but  to  the  proof  of  its  existence 
on  the  trial.  These  principles  of  course  require  no 
development. 

And  yet,  it  must  be  recognized  that  the  application 
of  these  rules  has  not  been  uniform  by  the  Courts.  For 
example,  a  few  courts  are  said  to  hold  that  if  a  contract 
to  sell  real  property  is  presented,  the  Statute  of  Frauds, 
not  of  the  forum,  but  where  the  real  property  is  located, 
governs.  As  to  this  question,  Heaton  v.  Eldredge,  56 
Oh.  St.  87,  46  N.  E.  638  said  with  respect  to  any  dis- 
tinction between  contracts  of  personal  and  contracts  of 
real  estate  under  the  Statute  of  Frauds:  "This  dis- 
tinction has  not  met  with  general  approval,  and  has 
been  repudiated  in  the  later  cases,  which  hold  that  the 
seventeenth  section  relates  to  the  remedy  like  section 
four,  and  the  difference  in  phraseology  between  these 
two  sections  is  not  such  as  to  warrant  a  different  in- 
terpretation in  that  respect,  but  that  both  sections  pre- 
scribe rules  of  evidence  which  courts  where  the  remedy 


REMEDIES  53 

is  sought  are  bound  to  observe."    It  is  clear  from  this 
leading  case  that  the  Statute  of  Frauds,  as  a  whole, 
is  purely  a  procedural  Statute,  without  regard  to  the 
specific  contract  in  the  case.     A  contract  to  sell  real 
property  is  essentially  a  personal  contract,  wherein  the 
title  is  only  collaterally  involved,  since  the  deed  can  be 
delivered  in  any  state  and  only  a  personal  act  is  to  he 
done.    So  that  all  contracts  are  alike  under  the  Statute 
of  Frauds.     It  requires  them  to  be  written.     And  it 
provides  that  if  they  are  not  written,  that  "No  action 
can  be  brought."     It  is  true  that  in  reference  to  real 
property  contracts   the   Statute  provides  that  if  they 
are  not  written  that  they  shall  be  "void".    But,  those 
of  us  who  have  studied  contracts  will  recall  that  there 
is  no  more  elastic  term  in  the  law  than  the  word  "void." 
It  can  certainly  be  used  in  different  senses.     Here  it 
is  a  question  of  construction.    Does  it  mean  null,  as  a 
contract,  or  simply,  unenf orcible  f    Logically,  the  Statute 
ought  to  mean  the  same  in  one  section  as  it  does  in 
another.     And  above  all,  the  policy  of  the  Statute  is 
to  be  considered.     It  aims  to  require  certain  evidence 
to  prove  the  contract  and  if  it  is  not  produced  to  with- 
hold the  remedy.     Beyond  that,  the  Statute  does  not 
aim  to  go.    It  does  not  make  the  contract  void  as  be- 
ing illegal.    It   accomplishes    its   very   purpose   in   all 
cases  by  construing  the  word  "void"  as  "unenf orcible" 
and  denying  a  remedy  only  in  the  state  where  action 
is  brought.     So  that  if  the  party  wants  to  enforce  his 
contract,  he  in  all  cases  must  sue  in  some  other  state. 
So  it  is  therefore  that  the  Statute  of  Frauds  is  wholly 
remedial. 

Sec.  21.  But  the  Statute  of  Limitations  is  not  so  sim- 
ple. The  purpose  of  the  Statute  is  to  discourage  liti- 
gation by  requiring  the  action  to  enforce  a  contract 
to  be  brought  within  a  limited  time,  while  the  facts  of 
the  case  are  fresh  in  the  memory  of  the  parties.  And 
if  it  is  not  brought,  to  refuse  to  enforce  it.  It  is  clear 
therefore,  that  the  Statute  of  Limitations  is  a  proced- 


54  CONFLICT  OF  LAWS 

ural  law;  that  it  regulates  the  remedy  on  a  contract, 
and  hence,  if  it  is  not  complied  with,  that  it  shall  not 
be  enforcible.  The  Statute,  on  the  other  hand,  does 
not  pertain  to  the  rights  of  the  parties.  It  does  not 
create  them  or  affect  them  in  any  way.  In  fact,  it 
assumes  to  begin  with,  that  there  is  a  valid  subsisting 
contract,  but  if  a  remedy  thereon  is  sought,  the  action 
must  be  brought  as  directed.  It  is  clear  therefore,  that 
to  decide  whether  the  Statute  of  Limitations  applies 
and  if  so,  which  particular  Statute,  the  law  of  the 
forum  must  be  consulted.     That  is  the  general  rule. 

These  principles  are  upheld  in  Pearsall  v.  Dwight, 
2  Mass.  84,  3  Am.  D.  35.     In  that  case,  A  sued  B  in 
Massachusetts  to  recover  on  a  note  executed  in  New 
York.    The  defendant  pleaded  in  defense,  the  New  York 
Statute  of  Limitations,  under  which  the  action  would  be 
barred.    But  the  Massachusetts  Court  held  that  the  New 
York  Statute  could  not  be  pleaded,  and  that  since  the 
action  was  brought  in  Massachusetts,  its  own  Statute 
governed  the  action,  and  it  not  being  barred  there,  a 
recovery  was  allowed.     The  case  is  simple.     The  con- 
tract was  made  in  New  York.     The  action  to  enforce 
it  however,  was  brought  in  Massachusetts.    Now,  since 
She  Statute  of  Limitations  pertains  to  the  remedy,  the 
Statute  in  force  in  Massachusetts,  where  the  action  was 
brought   governed.     And    since    by   the    Massachusetts 
Statute  of  Limitation  the  action  had  not  been  barred, 
it  was  maintainable.    This  is  therefore  the  general  rule. 
The  decision  in  the  case  cited  was  substantially  that 
because  an  action  is  barred  in  one  state,  it  is  not  nec- 
essarily barred  in  another.    That  was  the  very  situation. 
The  action  in  the  case  cited  was  barred  in  New  York 
where  the  contract  was  made,  but  it  was  not  barred  in 
Massachusetts   where   it   was   brought,   and  not  being 
barred  in  the  forum,  was  enforcible.     Hence,  we   can 
state  the  general  rule  in  another  way.     And  that  is, 
that  an  action  barred  in  the  state  where  a  contract  is 
made  is  not  barred  in  the  state  where  it  is  brought, 
unless  the  laws  of  the  forum  bar  it.    That  is  the  general 


REMEDIES  55 

principle  on  the  whole  subject.  All  states  have  Statutes 
of  Limitations.  But  they  all  differ  from  each  other 
very  materially  in  their  terms,  and  hence  in  a  given 
case  it  is  necessary  to  determine  which  must  be  con- 
sulted where  there  are  conflicting  elements.  Fortunately, 
there  is  the  general  rule  and  that  is  that  the  Statute 
of  the  forum  governs. 

But  were  we  treating  this  subject  in  an  exhaustive 
way,  we  would  not  be  satisfied  with  general  rules.     It 
is  certainly  to  be  noted  therefore,  that  there  are  a  few 
exceptional  cases  in  which  it  is  not  the  law  of  the  forum 
that  governs  with  respect  to  the  Statute  of  Limitations. 
However,  very  careful  study  of  these  exceptional  cases 
has  been  made,  and  it  is  believed  that  they  are  not  pe- 
culiar to  contracts,  but  that  they  apply  entirely  to  other 
actions.     Hence,  they  are  not  developed  here.     As  an 
example,  an  action  to  enforce  the  liability  of  a  stock- 
holder is  governed,  as  to  the  Statute  of  Limitations, 
not  by  the  law  of  the  forum,  but  by  the  law  of  the 
state  where  the  statutory  liability  is  imposed.     This  in 
reality  was  directly  held  in  Brunswick  Terminal  Co.  v. 
Bank,  40  C.  C.  A.  22,  99  Fed.  635,  where  an  action  was 
brought  in  Maryland  to  enforce  statutory  liability  of 
a  stockholder  incurred  under  the  laws  of  Georgia.    The 
Court  decided  that  a  stockholders  action  is  statutory, 
the  right  and  the  remedy  are  governed  by  the  law  of 
the   state   that   created  it,  because  the   right  and   the 
remedy  are  inseparable.    The  remedy  is  in  such  a  case 
a  part  of  the  right ;  and  when  a  party  enforces  a  statu- 
tory right  he  must  use  the  specific  remedy  it  provides 
by  suing  within  the  time  that  the  Statute  allows.     The 
Court  said:     "It  is  a  general  rule,  too  well  settled  to 
admit  of  serious  controversy  at  this  late  day,  that  the 
remedies  as  distinguished  from  the  rights  of  the  parties 
are  governed  by  the  law  of  the  forum,   and  that  the 
statutes  of  limitations  are  part  of  the  remedy  and  not 
of  the  laws  affecting  rights.    There  are  however  excep- 
tions to  this  rule ;  one  being,  where  a  statutory  liability 
is  sought  to  be  enforced  and  the  statute  prescribes  the 


56  CONFLICT  OF  LAWS 

period  of  limitation.  In  this  case,  the  general  rule  adopt- 
ing the  statutes  of  limitations  of  the  forum  is  departed 
from  and  the  limitation  prescribed  by  the  act  fixing  the 
liability  is  applicable."  That  is  sound  law.  It  is  true 
that  in  a  few  exceptional  cases,  such  as  stockholders 
actions,  the  Statute  of  the  forum  is  not  operative.  But 
none  of  those  exceptional  cases  are  actions  in  contract. 
Actions  in  contract  are  therefore,  as  a  general  principle 
governed  by  the  Statute  of  Limitations  in  force  in  the 
state  where  the  action  is  brought.  If  it  is  barred  by 
those  laws,  the  action  is  not  maintainable,  regardless 
of  whether  it  is  barred  or  not  under  the  laws  of  the 
state  where  it  had  its  origin. 


INTEREST  AND  USURY 
CHAPTER  VI 

Rule:  THE  RATE  OF  INTEREST  RECOVERABLE  ON  A  NOTE  IS 
GOVERNED  BY  LAW  OF  STATE  WHERE  IT  IS  MADE  OR  IS 
PAYABLE.l 

Rule:  THE  PARTIES  CAN  HOWEVER,  STIPULATE  FOR  ANY 
RATE  VALID  EITHER  BY  LAW  OF  STATE  WHERE  IT  IS  MADE  OR 
IS  PAYABLE,2  BUT 

Exception:  SUCH  STIPULATION  MUST  BE  MADE  IN  GOOD 
FAITH.3 

Sec.  22.  We  have  completed  our  discussion  of  the 
CONFLICT  OP  LAWS  in  reference  to  Contracts  gen- 
erally. Consequently,  we  are  now  in  a  position  to  con- 
sider the  application  of  those  general  rules  to  certain 
forms  of  Contract,  and  incidentally,  to  state  any  special 
rules  that  are  applicable.  The  field  of  contracts  is,  of 
course,  boundless.  It  would  be  impossible  to  discuss  the 
multitudinous  forms  of  Contract  in  the  law,  and  show 
the  application  of  the  CONFLICT  OF  LAWS  to  each 
of  them  separately.  No  such  exhaustive  treatment  will 
be  attempted  here.    A  few  typical  special  contracts  there- 

1— Thornton  vs.  Dean,  19  S.  C.  ALA.  119,  33  SO.  934;  Washington 

583,   45  Am.   R.   796;    SCOTT   VS.  Nat.   B.   &  L.   Ass'n   vs.   Pifer,  31 

PERLEE,  39  OH.  ST.  63,  48  AM.  App.    Cas.    434    (D.    C),    14    Ann. 

R.    421;    Martin    vs.    Johnson,    85  Cas.  734. 

Ga.    481,   10   S.   E.   1092;    Bigelow  3— Amer.    F.    L.    &    M.    Co.    vs. 

vs.  Burnham,  90  la.  300,  49  N.  W.  Jefferson,    69    Miss.    770,    12    So. 

104,    57    N.    W.    865;    Bennet    vs.  464;    SHANNON   VS.    ASS'N,    78 

Ass'n,    177    Pa.    St.    233,    35    Atl.  MISS.     955,     30     SO     51;     United 

684.  States    S.    &    L.    Co.    vs.    Beckley, 

2— Amer.    F.    L.    &    M.    Co.    vs.  137   Ala.   119,   33    So.    934;    Wash- 
Jefferson,    69    Miss.    770,    12    So.  ington    Nat.    B.    &    L.    Ass'n    vs. 
464;    Shannon  vs.  Ass'n,  78  Miss.  Pifer,  31   App.   Cas.   434    (D.   C), 
955,  30  So.  51;  UNITED  STATES  14  Ann.  Cas.  734. 
S.   &   L.  CO.   VS.   BECKLEY,   137 

57 


58  CONFLICT  OP  LAWS 

fore  will  be  chosen  and  given  special  discussion,  not 
only  because  of  their  especial  difficulty,  but  also  because 
of  their  practical  importance. 

Interest  and  usury  is  first  of  all,  an  appropriate  topic. 
There  is  always  a  note.  And  there  is  generally  a  mort- 
gage to  secure  its  payment.  The  presence  of  these  two 
contracts  complicates  any  transaction,  not  to  mention  the 
diverse  usury  laws  in  force  in  the  different  states  of  the 
Union.  So  here  we  have  a  real  problem.  Now,  to  begin 
with,  there  are  certain  general  rules  that  govern  all 
contracts.  And  in  this  respect  a  note  and  a  mortgage 
are  not  exceptional.  And  that  is,  that  as  to  usury,  the 
validity  of  a  note,  being  a  contract,  is  governed  by  the 
law  of  the  state  where  it  is  made.  Naturally,  in  decid- 
ing the  question  as  to  where  it  is  made,  we  again  apply 
a  general  rule  of  the  law  of  contract.  And  that  is, 
that  a  note  is  made  in  that  state  where  it  is  delivered. 
The  making  of  a  note  includes  two  acts, — signing  and 
delivery.  Since  delivery  is  the  final  act,  it  is  made 
where  it  is  delivered.  Hence,  if  delivery  is  personal,  a 
note  is  made  where  it  is  transferred  to  the  holder.  If 
delivery  is  by  mail,  a  note  is  made  in  that  state  where 
the  act  of  mailing  occurs,  that  being  the  last  essential 
act  in  the  case.  Now,  these  two  general  rules  are  simply 
part  of  the  law  of  contract  which  has  already  been 
discussed  at  length.  We  mention  them  here  simply  to 
show  their  application  to  a  negotiable  note.  So  there- 
fore, a  note  is  made  in  that  state  where  it  is  delivered. 
And  since  it  is  made  there,  the  rights  of  the  parties 
are  governed  by  the  laws  of  that  state.  Consequently, 
the  rate  of  interest  recoverable  being  a  question  that 
deals  with  the  rights  of  the  parties,  is  regulated  by  the 
law  of  the  state  where  the  note  was  delivered.  There 
is  certainly  no  difficulty  so  far. 

Now,  it  happens  occasionally  that  a  note  is  delivered  in 
one  state  but  is  payable  in  another.  But  even  here  there 
should  be  no  difficulty.  Simply  apply  the  general  prin- 
ciple of  Contracts  we  discussed  in  our  earlier  chapter. 
That  general  principle  is,  as  we  have  seen,  that  if  a 


INTEREST  AND   USURY  59 

contract  is  made  in  one  state,  but  is  to  be  performed 
in  another,  it  is  in  such  a  case  governed  by  the  laws  of 
the  state  where  it  is  to  be  performed.  Now,  then,  apply- 
ing this  general  principle,  if  a  note  is  payable  in  a  state 
other  than  where  it  was  delivered,  it  is  governed  by  the 
law  of  the  state  where  it  is  payable,  since  payment  is, 
as  to  a  note,  performance  of  the  contract.  Here  again, 
we  are  on  familiar  ground.  There  is  no  difficulty.  A 
note  is  a  contract.  And  in  deciding  the  rate  of  interest 
recoverable,  to  determine  whether  it  is  usurious,  we  sim- 
ply refer  to  the  proper  law,  as  in  ordinary  contracts. 
So.  therefore,  our  conclusion  is  that  if  a  note  is  made 
in  a  certain  state  its  validity  under  the  usury  law  de- 
pends on  the  law  of  that  State.  But,  if  it  is  made  in  one 
state  but  payable  in  another,  in  such  a  case  its  validity 
is  determined  by  the  law  of  the  state  where  it  is  payable. 
This  proposition  is  admirably  illustrated  by  Bennet  v. 
Ass'n.,  177  Pa.  St.  233,  35  Atl.  684.  The  facts  were,  that 
A  borrowed  a  sum  of  money  from  a  Building  and  Loan 
Association,  and  in  a  series  of  notes  secured  by  a  mort- 
gage, all  executed  in  Pennsylvania,  agreed  to  repay  the 
amount  in  New  York  State.  The  contract  would,  if  tested 
by  Pennsylvania  law,  be  usurious.  But,  if  governed  by 
New  York  law,  it  was  valid.  In  an  action  on  the  contract  in 
Pennsylvania,  the  Court  held  that  its  validity  was  regu- 
lated by  the  New  York  law  where  the  notes  were  pay- 
able. And  since,  by  New  York  law,  the  notes  were  not 
usurious,  the  fact  that  they  were  usurious  in  Pennsyl- 
vania would  be  immaterial.  This  case  therefore  shows 
that  the  validity  of  a  note  is  governed  by  the  law  of 
the  state  where  it  is  payable.  But  the  case  is  even 
stronger.  There  was  a  mortgage  given  on  Pennsylvania 
realty,  to  secure  the  payment  of  the  note  of  the  maker. 
Still,  that  made  no  difference  in  the  case.  Because,  in 
our  discussion  of  real  property  contracts,  we  learned 
that  if  a  transaction  includes  a  note  and  a  mortgage  as 
its  security,  the  mortgage  is  not  an  independent  con- 
tract.   On  the  other  hand,  the  note  is  the  main  contract, 


60  CONFLICT  OF  LAWS 

and  the  mortgage  is  merely  incidental  to  it,  and  hence, 
since  the  transaction  is  essentially  a  personal  contract, 
the  law  of  the  note  and  not  of  the  mortgage,  governs. 
This  phase  of  our  question,  it  will  be  recalled  we  thor- 
oughly discussed  in  the  case  of  Burr  v.  Beckler,  264 
111.  230,  106  N.  E.  206  and  the  principle  is  applied  again 
in  the  case  cited.  Hence,  the  validity  of  a  note,  whether 
it  is  secured  by  a  real  estate  mortgage  or  not,  is  gov- 
erned not  by  the  law  of  the  state  where  the  property 
is  located,  but  where  it  is  made,  or  is  payable. 

The  substance  of  our  foregoing  discussion  therefore 
is,  that  a  note  is  governed  by  the  law  of  the  state  where 
it  is  delivered;  but  if  it  is  payable  in  another  state,  it 
is  governed  by  the  laws  of  the  state  where  it  is  payable, 
the  contract  in  such  a  case  being  made  with  reference 
to  those  laws.  These  two  general  principles,  as  a  rule, 
can  decide  a  majority  of  questions  as  to  interest  and 
usury. 

But  this  subject  is  peculiar.  It  has,  to  a  considerable 
extent,  its  own  special  rules.  And  here  we  begin  a  de- 
parture from  those  general  rules  of  contracts.  On  re- 
ferring to  Contracts,  we  learned  that  if  a  contract  is 
void  where  it  is  made,  or  is  to  be  performed,  it  is  void 
in  all  states.  But  in  this  special  form  of  contract  this 
general  rule  is  not  applied.  That  is,  if  the  question 
whether  a  note  is  usurious  arises,  the  principle  developed 
by  the  courts  is,  that  if  it  is  valid  where  it  is  made  but 
void  where  it  is  to  be  performed,  it  is  valid;  or,  if  it  is 
void  where  it  is  made  but  valid  where  it  is  to  be  per- 
formed, it  is  valid.  That  is,  notes  are  peculiar.  They 
are  contracts  that  are  favored  in  the  law.  They  are  in 
reality  a  substitute  for  money.  The  policy  of  the  law 
therefore,  is  to  uphold  a  note  if  it  is  possible,  not  only 
to  protect  the  party,  but  in  the  interests  of  trade  and 
business  and  commerce  generally.  They  are  the  com- 
mon medium  of  exchange,  possessing  some  of  the  attri- 
butes of  currency,  and  are  therefore  given  special  con- 
sideration. So  it  is  therefore,  that  the  law  is  not  so 
strict  in  testing  the  validity  of  a  transaction  involving 


INTEREST  AND  USUEY  61 

a  negotiable  note  and  its  security.  Consequently,  they 
need  not  be  valid  as  contracts  generally  must  be,  by  both 
the  lex  contractus  and  the  lex  solutionis.  Therefore,  if 
a  note  is  valid  either  by  the  law  of  the  state  where  made, 
or  by  the  law  of  the  state  where  it  is  payable,  it  is  en- 
forcible  in  all  states.  That  is  the  special  rule  that  gov- 
erns this  species  of  contract.  Hence,  if  it  is  valid  by 
one  law  and  void  by  the  other,  since  it  is  valid  by  one 
of  them,  either  the  lex  contractus  or  the  lex  solutionis, 
it  is  an  enforcible  contract.  And  of  course,  if  it  is  valid 
by  both  laws,  as  is  the  case  with  contracts  as  a  whole, 
it  is  enforcible.  But  if  it  is  void  by  both  laws,  as  is 
the  case  with  contracts  as  a  whole,  it  is  unenforcible, 
since  in  such  a  case  there  would  be  no  law  to  support 
it.  It  is  evident  therefore,  that  negotiable  paper  is  sub- 
ject to  special  rules,  in  some  respects.  And  if  it  is 
valid  by  any  law,  that  is,  either  where  it  was  made  or 
where  it  was  payable,  it  is  enforcible.  That  is  the  point 
of  distinction  between  other  contracts  and  a  note. 

Let  us  refer  briefly  to  a  case  in  point.  In  Scott  v. 
Perles,  39  Oh.  St.  63,  48  Am.  E.  421,  A  sued  B  in  Ohio 
to  recover  on  a  note  executed  in  Ohio,  but  payable  in 
Illinois.  Now,  tested  by  Illinois  law  where  it  was  pay- 
able, it  would  be  valid,  but  tested  by  Ohio  law  where 
it  was  executed,  it  would  be  void.  The  Court  held  the 
note  valid.  It  was  void  where  executed,  but  valid  where 
payable,  but  since  it  was  valid  by  one  of  these  laws, 
it  was  a  valid  contract  and  could  be  enforced,  even 
though  invalid  by  the  laws  of  the  very  state  where  the 
action  was  brought.  The  Court  itself  stated  the  prin- 
ciple very  clearly:  "Where  such  a  contract,  in  express 
terms,  provides  for  a  rate  of  interest  lawful  in  one  but 
unlawful  in  the  other  state,  the  parties  will  be  presumed 
to  contract  with  reference  to  the  laws  of  the  state  where 
the  stipulated  rate  is  lawful,  and  such  presumption  will 
prevail  until  overcome  by  proof  that  the  stipulation  was 
a  shift  to  impart  validity  to  a  contract  for  a  rate  of 
interest  in  fact  usurious." 

On  the  whole  subject  therefore,  we  conclude  that  gen- 


62  CONFLICT  OF  LAWS 

erally,  a  note  whether  secured  or  not,  as  to  the  question 
of  usury,  is  governed  by  the  law  of  the  state  where  it  is 
made.  And  if  it  is  payable  in  another  state,  then  its  laws 
govern.  But,  as  a  special  rule  applicable  only  to  notes, 
if  it  is  void  by  one  of  those  laws,  but  valid  by  the  other, 
then  it  is  governed  by  the  law  of  the  state  under  which 
it  is  valid,  and  it  can  be  enforced  universally  on  the 
ground  of  Comity. 

Sec.  23.  The  special  rule  developed  in  the  preceding 
section  is  exceptional.  It  confers  upon  negotiable  paper, 
an  extraordinary  exemption  from  the  ordinary  appli- 
cable law,  just  as  a  concession  to  those  particular  forms 
of  contract.  It  is,  as  has  been  said,  a  special  rule.  So 
that,  if  the  note  can  be  upheld  by  either  the  lex  contractus 
or  the  lex  solutionis,  it  is  enforcible.  Naturally,  in  de- 
ciding the  validity  of  the  note,  we  never  consult  the  law 
of  the  forum,  because  the  lex  fori  regulates  the  remedy 
to  enforce  it,  and  does  not  in  any  way  determine  its 
validity  as  to  usury.  Now,  in  view  of  all  that  has  been 
said,  it  is  clear  that  in  the  case  of  a  note,  the  parties 
can  agree  that,  although  it  is  made  in  one  state,  it  is 
to  be  payable  in  another,  and  of  course  in  such  a  case 
it  is  governed  by  the  law  of  the  state  where  it  is  pay- 
able. 

Occasionally  however  a  different  situation  arises.  That 
is,  a  note  is  made  in  one  state,  and  is  payable  in  another, 
but  the  note  contains  a  stipulation  that  it  is  to  be  gov- 
erned by  the  laws  of  a  certain  state.  What  law  governs 
in  that  case?  Is  it  the  law  of  the  state  where  it  is  exe- 
cuted? Or  is  it  the  law  of  the  state  where  it  is  payable? 
Or  is  it  the  law  of  that  state  stipulated  by  the  parties? 
Here  again  a  second  special  rule  has  been  developed. 
And  that  is  that  the  parties  to  a  note  can  set  aside  the 
ordinary  law  of  the  subject  and  substitute  a  stipulated 
law  to  govern  the  note.  This  cannot  be  done  in  any 
other  form  of  contract.  And  when  there  is  such  a  stip- 
ulation in  the  note,  it  governs;  it  regulates  the  rate  of 
interest;  and  determines  whether  or  not  the  paper  is 


INTEREST  AND  USURY  63 

usurious.  By  such  stipulation  they  can  therefore  ex- 
clude the  ordinary  operative  law,  whether  it  be  lex 
contractus  or  lex  solutionis,  and  substitute  their  own 
stipulated  laws  thereby  their  rights  are  to  be  defined. 

But  this  right  in  a  note,  to  stipulate  an  applicatory 
law,  is  not  absolute.  The  parties  cannot  consult  the 
laws  of  every  state  in  the  Union,  and  then  select  the 
most  liberal  law  and  make  it  a  part  of  their  contract. 
Nor  on  the  other  hand,  are  they  required  in  a  note  to 
submit  it  to  the  most  severe  of  the  state  laws,  and  to 
make  them  a  part  of  their  contract,  just  because  those 
laws  are  the  laws  of  the  state  where  it  is  made  or  is 
payable.  The  parties  have  a  certain  limited  choice  of 
laws.  If  there  is  a  stipulation,  it  must  be  with  reference 
to  a  law  that  bears  on  some  element  in  the  transaction. 
As  we  have  said,  they  cannot  select  any  state  law.  Nor 
are  they  required  to  accept  the  lex  contractus  or  the 
lex  solutionis,  because  the  usury  laws  of  these  states 
may  be  harsh.  They  can  select  any  law  that  pertains 
to  some  other  element  in  the  case,  as  for  example,  the 
law  of  the  location,  or  the  law  of  the  domicile  of  one 
of  them.  So  it  is  therefore,  that  in  a  note,  if  there  is 
a  stipulated  law,  it  decides  the  question  of  usury,  pro- 
vided it  is  a  law  that  has  some  actual  and  not  merely 
fictitious  relation  to  the  facts  in  the  case. 

A  good  illustration  of  these  principles  is  U.  8.  Sav- 
ings &  Loan  Co.  v.  Beckley,  137  Ala.  119,  33  So.  934, 
in  which  A  brought  action  in  Alabama  to  have  the  Court 
adjudge  a  note  and  mortgage  void  for  usury.  The  note 
and  mortgage  were  executed  in  Alabama,  payable  in 
Minnesota,  and  contained  a  stipulation  that  ''they  were 
made  with  reference  to  the  laws  of  Minnesota."  The 
Court  held  that  the  note  and  mortgage  were  governed 
by  the  law  of  Minnesota,  and  not  being  usurious  under 
its  laws,  there  was  no  recovery.  The  Court  here  placed 
its  decision  on  two  distinct  grounds.  It  held  the  con- 
tract was  governed  by  the  law  of  Minnesota  first,  be- 
cause it  was  payable  there,  and  secondly,  because  the 
stipulation  required  that  the  contract  be  governed  by 


64  CONFLICT  OF  LAWS 

Minnesota  law.  It  emphasized,  however,  that  Minnesota, 
the  stipulated  law,  was  the  domicile  of  the  Association 
that  made  the  loan.  And  further,  that  it  is  the  policy 
of  such  Associations  in  making  their  contracts  in  dif- 
ferent states,  for  the  sake  of  uniformity,  to  stipulate 
that  they  be  construed  by  the  laws  of  the  state  where 
it  has  its  domicile. 

So  therefore,  in  conclusion,  the  parties  to  a  note  can 
stipulate  a  governing  law  and  thereby  exclude  both  the 
lex  contractus  and  the  lex  solutionis,  provided  the  stipu- 
lated law  has  reference  to  some  element  in  the  trans- 
action. The  right  to  stipulate  such  a  law  is  therefore 
not  absolute.  It  is  relative.  It  is  limited.  It  is  re- 
stricted to  notes,  secured  or  not;  and  above  all,  it  must 
be  made  in  good  faith,  so  that  the  parties  refer  to  some 
law  that  has  a  direct  reference  to  the  contract. 

Sec.  24.  In  the  preceding  section  it  was  shown  that 
the  parties  to  a  note  can  set  aside  the  law  that  would 
otherwise  govern.  They  can  substitute  a  different  law. 
They  can  stipulate  that  the  note  be  governed  by  the  laws 
of  a  specified  state,  and  in  such  a  case  its  laws  determine 
whether  the  note  is  usurious.  But,  we  said,  the  right 
to  stipulate  is  not  absolute.  It  is  restricted.  They  can- 
not stipulate  any  law.  They  must  stipulate  a  law  that 
has  reference  to  some  element  in  the  transaction,  and 
if  that  is  done  in  good  faith,  and  not  merely  as  a 
pretense  to  avoid  the  proper  law,  it  is  valid.  So  there- 
fore, the  stipulation  must  be  in  good  faith.  That  is, 
even  though  they  do  agree  on  a  law  having  reference 
to  some  element  in  the  contract,  there  must  be  a  satis- 
factory reason  for  selecting  that  law.  In  the  case  cited, 
they  did  stipulate  their  own  law.  That  law  did  have 
reference  to  some  element  in  the  transaction.  It  had 
reference  to  the  domicile  of  the  Association  that  made 
the  loan.  But — here  is  the  point — there  was  a  satis- 
factory basis  for  stipulating  that  law,  even  though  it 
had  reference  to  the  case.  And  that  basis  was  that 
Minnesota   was   the   domicile    of  the   corporation.    Its 


INTEREST  AND  USURY  65 

laws  governed  it.  Its  laws  defined  its  powers.  Its  laws 
were  known  to,  and  readily  accessible  by,  the  Association. 
And  naturally,  the  Association  preferred  to  contract 
with  third  parties  in  view  of  the  laws  that  created  it 
and  defined  its  powers  and  would  make  uniform  all  its 
contracts,  regardless  of  where  they  were  made,  in  any 
state  of  the  Union.  It  means  something  commercially 
to  an  Association  that  exists  in  one  state  but  has  an 
extensive  and  a  diversified  business  in  every  state,  to 
have  a  definite,  standard  contract  with  its  clients. 

So  it  is  then  that  this  case  of  U.  S.  Savings  &  Loan 
Co.  v.  Beckley,  137  Ala.  119,  33  So.  934  is  absolutely 
sound.  In  fact,  after  the  discussion  we  have  had,  it  is 
superfluous  to  emphasize  this  requirement  of  good  faith 
in  connection  with  a  stipulation.  The  author  submits 
that  a  stipulation  is  made  in  good  faith,  when  there  is 
a  sufficient  reason  for  it  in  a  note,  as  there  was  in  the 
case  cited.  If  there  is  no  such  sufficient  basis  for  it, 
the  stipulation  is  arbitrary,  evasive,  a  subterfuge  to 
escape  the  proper  law,  and  will  not  be  enforced. 

Let  us  refer  to  another  case  in  which  this  very  state 
of  facts  occurred.  In  Shannon  v.  Association,  78  Mass. 
955,  30  So.  51  the  facts  were  that  an  Association  that 
was  created  in  Georgia  did  business  in  Mississippi.  It 
made  a  loan  to  A  who  executed  to  it  a  note  and  real 
property  mortgage  in  Mississippi  as  security.  A  made 
all  payments  due  on  the  contract.  Later  however,  he 
sued  to  recover  a  portion  of  the  sums  paid,  alleging 
that  the  contract  was  usurious.  The  Court  held  he 
could  recover.  It  held  that  the  contract  was  governed 
by  Mississippi  law,  where  the  notes  were  executed,  and 
not  by  Georgia  law,  where  it  was  stipulated  they  were 
to  be  paid,  because  the  stipulation  was  not  made  in 
good  faith.  Now,  this  case  is  interesting.  It  is  more 
so,  because  it  is  in  contrast  to  the  case  previously  cited. 
The  cases  are  similar  in  their  facts;  only,  in  this  case 
the  stipulation  was  not  bona  fide.  The  Association  here 
had  only  a  technical  domicile  in  Georgia.  It  incorpor- 
ated there  and  immigrated  to  Mississippi,  where  the  bulk 


66  CONFLICT  OF  LAWS 

of  its  business  was  done.  Hence,  its  actual  domicile 
in  a  commercial  sense,  to  be  certain,  was  Mississippi, 
and  when  it  stipulated  with  reference  to  the  law  of 
Georgia,  that  law  had  no  actual  relation  to  any  element 
in  the  transaction.  Hence,  the  stipulation  was  not  made 
in  good  faith.  Hence,  it  was  inoperative.  Hence,  it 
did  not  determine  the  rights  of  the  parties,  and  there- 
fore the  proper  law  was  invoked,  and  it  was  the  law  of 
the  state  where  the  note  was  executed.  The  Court  said : 
"Whenever  under  circumstances  such  as  these,  the  for- 
eign corporation  thus  localizing  its  business  within  the 
state  has  the  payments  made  to  the  treasurer  or  secre- 
tary of  a  local  board,  the  real  intention  of  the  parties 
is  that  the  payments  shall  be  made  in  this  state,  and 
the  only  purpose  of  reciting  the  contrary  in  the  notes 
is  to  evade  the  usury  laws  of  the  state."  And  this 
very  case  supports  the  distinction  suggested,  that  the 
good  faith  of  a  stipulation  depends  on  whether  it  has 
a  good  purpose,  when  it  says :  ' '  This  holding  in  no  way 
interferes  with  the  right  of  a  foreign  corporation  whose 
business  has  not  been  localized  here,  to  make  contracts 
with  borrowers  to  be  governed  by  the  laws  of  the  state 
of  their  domicile,  if  there  be  no  purpose  therein  to 
evade  the  usury  laws  of  this  state."  Therefore  the 
parties  to  a  note  can  stipulate  a  law  to  govern  it.  But 
they  must  stipulate  a  law  that  has  reference  to  some 
element  in  the  contract.  And  above  all,  the  stipulation 
must  be  bona  fide  and  not  evasive,  in  that  there  must 
be  valid  reasons  for  selecting  that  particular  law,  such 
as  commercial  expediency. 


SALES  AND  CHATTEL  MORTGAGES 

CHAPTER  Vn 

Rule:  THE  RIGHTS  OF  PARTIES  IN  PROPERTY  SOLD  OR 
MORTGAGED  ARE  GOVERNED  BY  LAW  OF  THE  STATE  WHERE 
SUCH  PROPERTY  WAS  LOCATED  AT  THE  TIME  OF  THE  SALE 
OR  MORTGAGE,!  BUT 

Exceptions:  IF  PARTIES  CONTEMPLATED  ITS  IMMEDIATE 
REMOVAL,  OR,  AGREED  TO  ITS  SUBSEQUENT  REMOVAL,  TO 
ANOTHER  STATE,  IN  SUCH  CASES  THE  LAW  OF  THAT  STATE 
IS  APPLICABLE.3 


Sec.  25.  We  are  now  prepared  to  consider  the  subject 
of  Sales  and  Chattel  mortgages,  and  to  develop  the 
special  rules  that  govern  them  in  the  CONFLICT  OF 
LAWS.  This  particular  topic  has  been  chosen,  because 
it  concerns  rights  under  personal  property  contracts,  and 
in  addition,  it  regulates  the  rights  of  not  only  the  or- 
iginal parties,  but  also  of  third  parties. 


1— French  vs.  Hall,  9  N.  H.  137, 
32  Am.  D.  341;  GREEN  VS.  VAN 
BUSKIRK,  5  WALL.  307  (U.  S.), 
18  L.  ED.  599,  19  L.  ED.  109; 
Ames  Iron  Works  vs.  Warren,  76 
Ind.  512,  40  Am.  R.  258;  Marvin 
Safe  Co.  vs.  Norton,  48  N.  J.  L. 
412,  7  Atl.  418;  Weinstein  vs. 
Freyer,  93  Ala.  257,  9  So.  285; 
Hornthall  vs.  Burwell,  109  N.  C. 
10,  13  S.  E.  74;  Cleveland  Mach. 
Works  vs.  Lang,  67  N.  H.  348,  31 
Atl.  20;  NAT.  BANK  OF  COM- 
MERCE VS.  MORRIS,  114  MO. 
255,  21  S.  W.  511;  Adams  vs.  Fel- 
lers, 88  S.  C.  212,  70  S.  E.  722; 
Farmers  &  Merchants  State  Bank 
vs.  Sutherlin,  93  Neb.  707,  141 
N.   W.   827;     Contra:     CORBETT 


VS.  LITTLEFIELD,  84  MICH.  30, 
47  N.  W.  581;  SNYDER  VS. 
YATES,  112  TENN.  309,  79  S.  W. 
796;  Boyer  vs.  Knowlton  Co.,  85 
Oh.  St.  104,  97  N.  E.  137;  Bee: 
THURET  VS.  JENKINS,  7  MAR- 
TIN 318  (LA.),  12  AM.  D.  508; 
Whiston  vs.  Stadder,  8  Martin  95 
(La.),  12  Am.  D.  281;  Schmidt 
vs.  Perkins,  74  N.  J.  L.  785,  67 
Atl.  77;  Nat.  Bank  of  Commerce 
vs.  Jones,  18  Okla.  555,  91  Pac. 
191. 

2 — Hervey  vs.  Locomotive 
Works,  93  U.  S.  664,  23  L.  Ed. 
1003;  BEGGS  VS.  BARTELS,  73 
CONN.  132,  46  ATL.  874.  JONES 
VS.  FISH  &  OIL  CO.,  42  WASH. 
332,  84  PAC.  1122. 


67 


68  CONFLICT  OF  LAWS 

These  two  forms  of  Contract  can  be  considered  to- 
gether. They  both  create  rights  in  personal  property. 
And  they  both  involve  the  rights  of  not  only  the  orig- 
inal parties,  but  also  of  third  parties  like  creditors, 
mortgagees,  and  purchasers,  who  have,  in  some  way, 
acquired  an  interest  in  the  property  sold  or  mortgaged. 
It  is  evident  that  these  two  transactions  are  not  simple. 
But  still,  it  is  evident  on  the  other  hand,  that  being 
contracts,  both  of  them,  a  sale  and  a  mortgage,  are  as 
a  general  rule,  governed  by  the  laws  of  the  state  where 
each  is  respectively  made.  Hence,  the  rights  of  the 
original  parties  to  a  sale  or  a  chattel  mortgage  depend 
on  the  law  of  the  state  where  it  is  made. 

But  as  a  first  preliminary  question,  where  is  a  sale 
made?  A  sale  implies  a  contract  to  sell  property.  But 
it  is  more.  It  implies  the  delivery  of  that  property. 
Hence,  the  act  of  delivery  completes  the  sale.  There- 
fore, a  sale  is  made  in  that  state  where  the  property 
is  delivered.  And  consequently,  being  delivered  in  a 
certain  state,  and  the  sale  being  made  in  that  state,  the 
rights  of  the  original  subparties  are  governed  by  its 
laws.  And,  as  another  preliminary  question,  where  is 
a  chattel  mortgage  made?  Unlike  a  sale,  a  chattel 
mortgage  does  not  require  delivery  of  the  property. 
It  simply  requires  delivery  of  the  written  mortgage, 
to  constitute  the  contract.  So  therefore,  since  a  mort- 
gage requires  delivery  of  the  contract,  it  is  made  in 
that  state  where  such  delivery  is  complete.  The  de- 
livery of  a  mortgage  is  generally  known  as  ' '  execution. ' ' 
"Execution"  includes  signing  and  delivery,  and  hence, 
the  delivery  of  the  mortgage  is  the  execution  of  it. 
These  terms  are  in  law,  synonymous.  So  it  is  therefore, 
that  the  rights  of  the  original  parties  to  a  chattel  mort- 
gage are  governed  by  the  law  of  the  state  where  it  was 
executed.  In  sales  or  chattel  mortgages,  there  is  to  a 
certain  extent,  an  indiscriminate  use  of  terms.  The 
authorities  state  the  general  principle,  but  merely  in 
a  different  way.  Hence,  the  general  rule  is  that  the 
rights  of  the  original  parties  to  a  sale  or  chattel  mort- 


SALES  AND  CHATTEL  MORTGAGES  69 

gage  are  governed  by  the  law  of  the  state  where  the 
transaction  was  completed,  by  delivery  of  the  goods  in 
one  case,  or  the  execution  of  the  writing  in  the  other. 
There  is  certainly  nothing  extraordinary  so  far.  These 
principles,  we  have  just  stated,  are  in  reality  taken 
from  the  general  law  of  contracts.  So  that,  as  far  as 
the  original  parties  are  concerned,  that  is,  the  seller 
and  buyer  or  the  chattel  mortgagor  and  the  chattel 
mortgagee,  as  against  each  other,  there  is  no  special 
rule  applicable  to  these  contracts,  because  contracts  in- 
volving personal  property  are  not  distinguishable  from 
any  other  contract  in  the  CONFLICT  OF  LAWS. 

But  right  here  we  begin  our  real  special  discussion. 
We  now  propose  to  consider  the  law  that  governs  not 
the  rights  of  the  original  parties,  but  the  rights  of  third 
parties  in  property  sold  or  mortgaged.  A  third  party 
can  acquire  his  interest  either  in  the  character  of  credi- 
tor, mortgagee  or  purchaser.  Naturally,  the  law  must 
consider  his  rights  in  disposing  of  a  controversy  re- 
specting the  property.  But  which  state  law  decides  his 
rights?  Is  it  the  law  of  the  state  where  the  sale  or 
chattel  mortgage  transaction  was  completed?  No,  it  is 
not.  Since  this  third  party  is  not  claiming  any  interest 
under  the  contract,  his  rights  should  not  be  governed 
by  the  law  of  the  contract.  He  did  not  participate  in 
the  contract.  He  is  a  stranger  to  it.  Therefore,  since 
he  is  not  a  party  to  the  contract,  he  has  no  rights  or 
obligations  with  respect  to  it,  and  consequently  is  not 
subject  to  the  law  that  governs  it.  Clearly,  the  posi- 
tion of  a  third  party  is  distinguishable  from  that  of  an 
original  party  to  the  contract.  And  certainly  he  is 
governed  by  some  law.  And  what  law  is  it?  It  is  the 
law  of  the  state  where  that  property  was  located  at  the 
time  of  the  sale  or  mortgage.  In  the  CONFLICT  OF 
LAWS  personal  property  occupies  a  unique  position. 
The  law  that  governs  it  is  not  uniform  in  all  transac- 
tions. It  depends  on  the  particular  transaction  in  which 
the  question  arises.  If  it  is  a  contract  and  the  ques- 
tion arises  between  the  original  parties,  their   rights 


70  CONFLICT  OF  LAWS 

are  governed  by  the  law  of  the  state  where  the  con- 
tract was  completed,  regardless  of  the  location  of  the 
property.  But,  if  the  question  arises  between  the  or- 
iginal parties  and  a  third  party,  then  their  rights  are 
governed  by  the  law  of  the  state  where  the  property 
was  located  at  the  time  of  the  sale  or  mortgage,  re- 
gardless of  the  law  of  the  contract.  That  is,  in  a  third 
party  controversy,  personal  property  has  its  own  sep- 
arate location.  It  is  such  a  case,  subject  to  the  law  of 
the  state  where  it  is  located.  And  accordingly,  those 
laws  decide  the  rights  of  third  parties  in  it.  And  why? 
Because,  where  the  original  parties  contest  their  rights 
in  personal  property,  the  question  between  them  is 
wholly  contractual  and  since  their  rights  in  it  depend 
on  the  contract,  the  law  of  the  contract  decides.  But, 
where  third  parties  assert  title  to  property,  the  question 
in  the  case  is  not  a  contractual  one.  It  is  purely  a 
property  controversy.  And  being  such,  the  title  to  that 
property  is  determined  by  the  laws  of  the  state  where 
it  was  located.  That  distinction  is  sharply  drawn 
throughout  the  whole  subject.  As  against  a  third  party 
it  is  wholly  a  property  question.  It  presents  an  issue 
as  to  the  title  to  personal  property.  Since  each  state 
has  exclusive  jurisdiction  to  determine  title  to  personal 
property  located  within  its  limits,  therefore  the  laws 
of  that  state  where  the  property  is  located  will  be  ap- 
plicable. So  therefore,  in  conclusion,  the  rights  of  the 
parties  as  against  third  parties  in  property  sold  or 
mortgaged,  are  governed  by  the  laws  of  the  state  where 
it  was  located  at  the  time  of  the  transaction.  When 
a  sale  or  a  mortgage  is  made,  the  location  of  the  prop- 
erty at  that  time,  definitely  and  permanently,  fixes  the 
relations  of  all  those  parties  to  it,  regardless  of  a  sub- 
sequent change  in  that  location. 

Now,  let  us  refer  to  a  leading  case  by  way  of  illus- 
tration. In  Green  v.  Van  Buskirh,  5  Wall.  307  (U.  S.) 
18  L.  Ed.  599,  19  L.  Ed.  109,  the  facts  briefly  were 
that  A  executed  a  chattel  mortgage  in  New  York  to  B, 
on  a  certain  safe,  which  however,  was  at  the  time  lo- 


SALES  AND  CHATTEL  MORTGAGES  71 

cated  in  Illinois.  The  property  in  Illinois  was  later 
seized  by  A's  creditors  there  under  a  writ  of  attach- 
ment and  was  sold  for  his  debts.  The  question  was, 
who  is  entitled  to  the  property!  The  Illinois  Court 
held  that  since  at  the  time  of  the  mortgage,  the  prop- 
erty was  located  in  Illinois,  the  right  of  a  third  party 
in  it  was  governed  by  its  laws.  Hence,  A's  creditor- 
prevailed,  and  since  the  sale  of  the  property  by  A's 
creditors  was  valid,  they  had  good  title  and  were  not 
liable  for  conversion  to  B.  This  is  a  leading  case,  but 
unfortunately  it  does  not  fully  discuss  the  main  ques- 
tion involved.  And  that  question  was  whether  the  rights 
of  the  parties  in  the  property  were  regulated  by  New 
York  or  Illinois  law.  But  apart  from  the  opinion  in 
the  case,  the  ultimate  principle  was  strongly  upheld. 
And  that  is  that  the  laws  of  the  location  were  appli- 
cable. The  case  involved  purely  a  question  of  title  to 
the  property.  And  that  being  so,  it  had  to  be  decided 
by  Illinois  law  where  that  property  was  located.  And 
since  under  that  law  C  had,  by  attachment,  acquired  a 
legal  right  in  the  property  prior  to  B,  C's  rights  were 
superior,  and  he  was  not  liable  when  he  had  the  prop- 
erty sold  to  pay  a  debt  which  was  the  basis  of  the 
attachment  proceedings. 

Now,  another  interesting  case  in  which  the  facts  were 
similar,  but  distinguishable,  is  National  Bank  of  Com- 
merce v.  Morris,  114  Mo.  255,  21  S.  W.  511.  In  that 
case  A  executed  a  chattel  mortgage  in  Kansas  to  B 
covering  certain  live  stock  located  in  the  State,  B  re- 
cording the  transaction.  Later  how  A,  without  the 
knowledge  or  consent  of  B,  removed  the  cattle  to  Illinois, 
where  he  sold  them  to  C,  a  third  party.  B,  on  learning 
of  these  facts,  brought  action  in  Missouri  against  C  to 
recover  their  value.  The  decision  of  the  case  of  course 
depended  on  who  had  title  to  the  property.  It  was 
held  that  B  could  recover-.  The  Court  said:  "The 
mortgage  was  duly  executed  and  recorded  in  the  state 
of  Kansas,  and  all  persons  thereafter  purchasing  the 
cattle  within  the  borders  of  Kansas  were  bound  in  law 


72  CONFLICT  OF  LAWS 

to  take  notice  thereof;  and  the  same  rule  by  virtue  of 
Comity  between  the  States,  applied  to  the  cattle  in  the 
state  of  Illinois."  This  case  is  absolutely  sound.  And 
it  is  simple  in  analysis.  As  shown  by  the  facts,  the 
mortgage  was  executed  in  Kansas;  it  was  recorded  in 
that  state;  and  the  property  at  the  time  was  located 
within  its  limits.  Therefore,  B  acquired  valid  right  in 
it  by  his  mortgage.  Now,  when  the  property  was  later 
removed  to  Illinois,  his  rights  accompanied  it  there,  and 
when  C  bought  it,  C  bought  it  subject  to  B's  preexist- 
ing title.  In  other  words,  the  case  like  Green  v.  Van 
Buskirk,  5  Wall.  307  (U.  S.),  18  L.  Ed.  599,  19  L.  Ed. 
109  presented  simply  a  question  of  title  to  the  property. 
And  being  a  question  of  title,  it  had  to  be  decided  by 
the  law  of  the  state  where  the  property  was  located 
at  the  time  of  the  mortgage.  Now,  since  it  had  been 
at  that  time  located  in  Kansas,  therefore  the  rights  of 
the  parties  were  governed  by  Kansas  law.  And  why 
did  B  prevail?  Because,  when  the  property  was  in 
Kansas  he  acquired  a  right  in  it  by  the  execution  and 
recording  of  the  mortgage.  And  the  subsequent  removal 
of  the  property  to  Illinois  did  not  divest  his  right  be- 
cause it  was  recognized  in  that  state  on  the  ground  of 
Comity. 

Now  therefore,  we  can  make  a  concluding  statement. 
And  that  is,  that  if  the  title  to  personal  property  is 
in  dispute  between  an  original  party  and  a  third  party, 
the  law  of  the  state  where  the  property  was  located  at 
the  time  of  the  sale  of  mortgage  governs.  If  the  prop- 
erty, as  in  Green  v.  Van  Buskirk,  5  Wall.  307  (U.  S.), 
18  L.  Ed.  599,  19  L.  Ed.  109  was  at  the  time  in  one 
state  and  the  mortgage  was  executed  in  another  state, 
the  law  of  the  location  governs,  and  the  third  party 
prevails  because  the  attachment  gives  him  a  prior  title; 
and  if,  as  in  National  Bank  of  Commerce  v.  Morris, 
114  Mo.  255,  21  S.  W.  511,  the  property  was  at  the  time 
in  the  state  where  the  mortgage  was  executed,  again 
the  law  of  the  location  governs,  but  the  mortgagee  pre- 
vails  because   the   mortgage   gives    him    a   prior  title. 


SALES  AND  CHATTEL  MORTGAGES  73 

Naturally  on  principles  of  Comity,  if  a  mortgagee  or 
a  creditor  once,  under  the  law  of  the  location,  acquires 
a  valid  prior  title,  the  subsequent  removal  of  the  prop- 
erty to  another  state  does  not  divest  it.  That  is,  a 
title  that  is  once  prior  and  vested  by  the  law  of  the 
location  retains  its  vested  prior  character,  in  spite  of 
the  change  of  location.  Because,  a  title  prior  and  valid 
in  one  state,  is,  on  the  principle  of  Comity,  prior  and 
valid  in  all  states  as  against  all  other  parties. 

Sec.  26.  In  the  preceding  section  it  was  shown  that 
the  rights  of  third  parties  in  property  sold  or  mort- 
gaged are  governed  by  the  law  of  its  location  at  the  time 
of  the  sale  or  mortgage.  And  that  party,  whether  he 
is  one  of  the  contracting  parties  or  a  third  party,  who 
obtains  a  prior  vested  right  in  the  property  by  sale  or 
mortgage  or  attachment,  can  assert  it  in  another  state 
to  which  it  is  subsequently  taken. 

Nor  is  that  all.  Other  cases  occur.  That  is,  occa- 
sionally there  is  a  case  in  which  one  party  sells  prop- 
erty located  at  the  time  in  one  state  but  agrees  to  its 
immediate  removal  to  another  state.  In  fact,  that  was 
the  state  of  affairs  in  Beggs  v.  Bartels,  73  Conn.  132, 
46  Atl.  874.  In  that  case,  A  made  a  conditional  sale  in 
New  York  to  B,  of  property  at  the  time  located  in  that 
state.  But  the  agreement  was,  that  B  was  to  remove  it 
immediately  to  Connecticut,  and  install  it  in  his  factory 
there,  which  was  done.  Later  C,  a  creditor,  attached 
it  in  Connecticut.  And  A  sues  to  recover  the  value  of 
it.  The  Court  held  there  was  no  recovery,  saying  briefly 
that:  "The  contract  was  intended  to  have  its  operation 
on  property  situated  in  Connecticut."  This  case,  just 
like  the  two  others  that  we  have  discussed,  involved 
not  the  right  of  one  party  to  the  contract  against  the 
other  party,  but  simply  a  question  of  title.  And  when 
the  title  to  personal  property  is  in  dispute  between  an 
original  party  and  a  third  party,  as  it  was  in  this  case, 
the  law  that  governs  is  the  law  of  that  state  into  which 
the  property  is  to  be  immediately  removed,  where  the 
parties  had  so  agreed.    By  agreeing  to  remove  it  into 


74  CONFLICT  OF  LAWS 

another  state  immediately,  they  subject  it  to  the  laws 
of  that  state,  and  contract  in  reference  to  those  laws, 
and  therefore  actually  eliminate  the  law  of  its  original 
location  as  a  factor  in  the  transaction,  substituting  the 
law  of  the  proposed  location  in  its  place.  Hence,  this 
case  brings  out  a  fine  distinction.  It  holds  that  if  at 
the  time  of  the  sale  or  mortgage,  the  parties  agree  to 
its  immediate  removal  to  another  state,  the  laws  of  its 
proposed  location  govern.  But  this  holding  is  not  after 
all,  technical.  When  a  party  agrees  to  the  removal  of 
property  on  which  he  had  a  lien,  he  thereby  through 
his  own  voluntary  act,  submits  it  and  his  rights  in  it 
to  the  laws  of  the  state  into  which  it  is  taken.  And  if, 
as  in  this  case,  a  third  party  acquires  a  prior  right  in 
it  by  attachment  in  that  state,  the  third  party  prevails 
because  the  original  party  has  waived  his  rights. 

Now,  this  question  of  waiver  comes  up  in  still  another 
form.  For  illustration,  we  can  refer  to  Jones  v.  Fish 
&  Oil  Co.,  42  Wash.  332,  84  Pac.  1122.  The  facts  were 
that  A  executed  in  Alaska,  to  B  a  chattel  mortgage 
covering  fish  located  there.  Later  A,  with  the  knowledge 
and  consent  of  B,  removed  the  property  into  Washington, 
where  it  was  seized  by  creditors.  While  the  property 
was  in  Washington,  B  began  proceedings  to  enforce  his 
mortgage  against  the  property.  But  the  Court  held 
he  could  not  recover.  It  said:  "A  mortgage  duly  exe- 
cuted and  recorded  in  one  state  is  given  effect  in  another 
state  by  virtue  of  the  rule  of  Comity  that  exists  be- 
tween the  states,  and  applies  only  in  cases  where  the 
removal  is  without  the  knowledge  or  consent  of  the 
mortgagee.  Consent  by  the  mortgagee  that  the  prop- 
erty may  be  taken  from  the  situs  of  the  mortgage  is 
a  waiver  of  the  mortgage  as  against  every  person  ex- 
cept the  mortgagor;  hence,  a  mortgagee  who  consents 
to  the  removal  of  mortgaged  property  from  the  situs  of 
the  mortgage,  cannot  be  heard  to  insist  as  against 
strangers,  that  it  has  effect  outside  of  its  situs.  So 
here,  inasmuch  as  the  mortgagee  consented  to  the  re- 
moval of  the  property  from  Alaska  to  this  state,  he 


SALES  AND   CHATTEL.  MORTGAGES  75 

waived  his  mortgage,  as  against  the  respondents  who 
seized  the  property  as  creditors  of  the  mortgagor." 

These  two  cases,  that  bear  on  the  question  of  waiver, 
are  sound  law.  They  admit  the  general. rule  that  the 
rights  of  the  parties  are  governed  by  the  law  of  the 
location  at  the  time  the  property  was  sold  or  mortgaged. 
And  hence,  if  under  that  law,  the  party  acquires  a  valid 
title  or  lien  in  it,  the  subsequent  removal  of  the  property, 
to  another  state  does  not  impair  his  rights.  Under  the 
rules  of  Comity,  a  right  in  property  acquired  under  the 
laws  of  the  location  can  be  asserted  in  the  property 
wherever  it  is  taken.  But  here  the  cases  diverge  in 
their  facts  and  in  the  law.  That  is,  if,  prior  to  the  sale 
or  mortgage,  the  party  agrees  to  its  immediate  removal 
to  another  state,  he  thereby  submits  the  property  to 
its  laws;  he  elects  to  have  his  rights  determined  by  its 
laws;  and  if  a  third  party  in  that  state  acquires  there 
a  right  in  it  by  attachment,  the  original  party  is  pre- 
cluded by  his  own  waiver.  And  the  identical  principle 
applies  if  the  party  consents  to  the  removal  of  the  prop- 
erty subsequent  to  the  sale  or  mortgage.  In  such  a  case, 
he  thereby  subjects  the  property  to  the  law  of  the  state 
into  which  it  has  been  removed  with  his  knowledge  and 
consent.  Consequently,  he  by  his  conduct,  enables  the 
party  in  possession  of  it  to  deceive  and  mislead  a  third 
party  into  the  belief  that  he  is  the  owner.  When  a 
creditor  therefore  seizes  the  property  in  that  state,  he 
acquires  a  prior  valid  lien  against  it,  and  the  original 
party  who  created  the  deception  is  precluded  from  as- 
serting the  title  he  originally  had.  We  have  in  that . 
case,  not  only  a  waiver  of  his  rights,  but  an  actual 
estoppel  to  assert  them.  The  cases  are  therefore  based 
on  the  one  fundamental  proposition  that  a  party  validly 
acquiring  a  right  under  the  laws  of  the  state  where  the 
property  was  originally  located  can,  by  a  waiver  in  one 
case  or  an  estoppel  in  the  other,  lose  that  right  if  it  is 
taken  out  of  the  state,  either  by  his  agreement  before 
the  transaction  occurs,  or  by  his  consent  after  it  occurs. 

We  can  now  generalize  in  conclusion.     The  rights  of 


76  CONFLICT  OF  LAWS 

parties  in  property  sold  or  mortgaged  are  regulated 
by  the  laws  of  its  location  at  the  time  the  contract  was 
made.  If  the  original  party  therefore,  acquires  a  right 
title  or  interest  in  the  property  by  those  laws,  he  can 
assert  his  rights  against  the  property  in  any  state  into 
which  it  is  taken  unless,  first,  he  either  agreed  to  its 
removal  before  the  sale  or  mortgage;  or,  secondly,  un- 
less he  consented  to  its  removal  after  the  sale  or  mort- 
gage, in  either  of  which  cases  he  is  precluded  from  as- 
serting his  title  on  the  principles  of  waiver  and  estoppel, 
to  the  prejudice  of  a  third  party. 


MARRIAGE 

CHAPTER  Vm 

Rule:  THE  VALIDITY  OF  A  MARRIAGE  IS  GOVERNED  BY 
LAW  OF  THE  STATE  WHERE  IT  WAS  CELEBRATED.] 

Rule:  A  MARRIAGE,  VALID  WHERE  CELEBRATED,  IS  REC- 
OGNIZED IN  ANOTHER  STATE,2  BUT 

Exception:  IT  IS  NOT  RECOGNIZED  IF  IT  IS  IN  VIOLATION 
OF  LOCAL  PUBLIC  POLICY.3 

Rule:  RIGHTS  OF  THE  PARTIES  IN  MARITAL  REALTY  ARE 
REGULATED  BY  LAW  OF  STATE  WHERE  IT  IS  LOCATED.4 

Rule:  THEIR  RIGHTS  IN  PERSONALTY  ARE  DEFINED  BY  LAW 
OF  STATE  IN  WHICH  THEY  ARE  DOMICILED.5 

Sec.  27.  Marriage  has  been  defined  as  a  status.  That 
is,  it  is  a  personal  relation  created  by  a  contract  be- 
tween the  parties.  And  when  the  relation  arises,  the 
parties  occupy  a  peculiar  position  in  society  generally. 
The  legitimacy  of  children  is  involved;  their  rights  in 
property  are  modified;  and  the  state  as  a  whole  is  in- 
terested in  recognizing  the  validity  of  the  marriage. 
And  therefore,  a  marriage  being  created  by  a  contract, 

1— MEDWAY   VS.    NEEDHAM,  MAN,  121  CAL.  620,  54  PAC.  143: 

16    MASS.    157,    8    AM.    D.    131;  IN   RE    LANDO'S   ESTATE,    112 

ROCHE    VS.    WASHINGTON,    19  MINN.  257,  127  N.  W.  1125. 

IND.  53,  81  AM.  D.  376;  Common-  2— Medway     vs.     Needham,     16 

wealth  vs.  Lane,  113  Mass.  458,  18  Mass.   157,   8   Am.   D.   131;    COM- 

Am.  R.   509;    Crawford  vs.   State,  MONWEALTH    VS.    LANE,    113 

73  Miss.  172,  18  So.  848;  State  vs.  MASS.  458,  18  AM.  R.  509;  State 

Shattuck,  69  Vt.  403,  38  Atl.  81;  vs.   Shattuck,  69  Vt.   403,   38   Atl. 

State  vs.  Fenn,  47  Wash.  561,  92  81;  State  vs.  Fenn,  47  Wash,  561, 

Pac.  417;   State  vs.  Hand,  87  Neb.  92   Pac.   417;    State  vs.   Hand,   87 

189,    126    N.    W.    1002;      Contra:  Neb.  189,  126  N.  W.  1002;    In  re 

GREENHOW  VS.  JAMES,  80  VA.  Lando's  Estate,  112  Minn.  257,  127 

636,  56  AM.  R.  603;    -See:     EARL  N.  W.  1125. 

VS.  GODLEY,   42  MINN.   361,  44  3— Hyde  vs.  Hyde,  L.  R.  1  P.  &. 

N.   W.  254;    NORMAN  VS.  NOR-  D.  130,  5  E.  R.  C.  833;   Pennegar 

77 


78  CONFLICT  OF  LAWS 

is,  as  to  its  validity,  governed  by  the  law  of  the  state 
where  it  is  celebrated.  That  law  governs  not  only  its 
formal,  but  also  its  substantial  requirements.  It  regu- 
lates the  mode  of  solemnizing  the  marriage,  and  it  de- 
termines the  capacity  of  the  parties  to  enter  into  that 
relation.  So  that  in  all  respects,  the  validity  either  as 
to  the  form  of  the  contract,  or  as  to  the  capacity  of 
the  contracting  parties,  is  regulated  by  the  lex  celebra- 
tionis, the  law  of  the  state  where  the  marriage  was 
celebrated.  This  general  proposition  is  so  thoroughly 
established  as  the  law,  that  it  would  be  superfluous 
to  cite  authority  in  its  support.  The  question  however 
was  presented  under  a  very  peculiar  state  of  facts,  In  re 
Lando's  Estate,  112  Minn.  257,  127  N.  W.  1125.  In 
that  case,  the  validity  of  the  marriage  arose  on  the 
application  of  A,  a  widow,  for  letters  of  administration 
in  the  estate  of  her  deceased  husband  B.  Both  A  and 
B  had  for  a  long  time  been  residents  of  Minnesota. 
Later  however,  they  separately  migrated  to  Germany. 
While  there  they  met,  had  a  marriage  ceremony  per- 
formed, and  subsequently  cohabited  as  husband  and 
wife.  And  hence,  all  the  acts  tending  to  establish  a 
marriage  transpired  in  Germany.  Now,  here  is  the 
interesting  point  of  law  in  the  case.  The  German  Law 
provided  substantially  that  the  validity  of  a  marriage 
should  be  determined  by  the  law  in  force  where  the 
parties  are  domiciled.  Hence,  the  Court,  in  deciding  its 
validity  here,  indirectly  had  to  determine  it  with  refer- 
ence  to   Minnesota   law,   where   the   parties   had   been 

vs.  State,  87  Tenn.  244,  10  S.  W.  Hess,  154  111.  482,  40  N.  E.  335; 

305;  State  vs.  Tutty,  41  Fed.  755;  See:     De   Pas   vs.    Mayo,   11   Mo. 

In  Re  Stull's  Estate,  183  Pa.   St.  314,  49  Am.  D.  88;   Brockman  vs. 

625,  39  Atl.  16;   Lanham  vs.  Lan-  Durkee,    46    Wash.    578,    90    Pac. 

ham,    136    Wis.    360,    117    N.    W.  914. 

787;  WILSON  VS.  COOK,  256  5— SUCCESSION  OF  PACK- 
ILL.  460,  100  N.  E.  222.  WOOD,  9  ROBINSON,  438  (LA.), 
4_Besse  vs.  Pellochoux,  73  111.  41  AM.  D.  341;  See:  BROCKMAN 
285,  24  Am.  R.  242;  RICHARD-  VS.  DURKEE,  46  WASH.  578,  90 
SON  VS.  DE  GIVERVILLE,  107  PAO.  914. 
MO.  432,  17  S.  W.  974;   Long  vs. 


MABRIAGE  79 

domiciled.  And  since  it  was  valid  by  the  German  law 
where  contracted,  that  is,  the  Minnesota  law  which  the 
German  law  adopted,  it  was  valid  in  Minnesota.  This 
case  therefore,  by  a  species  of  legal  circumnavigation, 
holds  as  is  the  general  rule,  that  the  validity  of  a  mar- 
riage is  regulated  by  the  lex  celebrationis.  In  fact,  the 
Court  said:  "The  validity  of  the  marriage  is  to  be 
determined  by  the  law  of  Germany  where  is  was  cele- 
brated. It  is  a  generally  accepted  principle  of  inter- 
state and  international  law,  that  the  validity  or  inva- 
lidity of  a  marriage  is  to  be  determined  by  the  law  of 
the  place  where  the  ceremony  is  performed ;  that  a  mar- 
riage, legal  where  solemnized,  is  valid  everywhere;  and 
that  a  marriage  void  where  it  is  celebrated  is  void 
everywhere. ' ' 

Sec.  28.  The  preceding  section  has  developed  the  gen- 
eral principle  that  the  validity  of  a  marriage  depends 
on  the  law  of  the  state  where  it  was  celebrated.  In 
reality,  it  has  developed  another  general  principle,  and 
that  is,  that  if  a  marriage  is  valid  in  the  state  where 
celebrated,  it  is  valid  in  all  states.  And  that  is  the 
general  rule.  In  no  case  is  Comity  more  justified  in  the 
recognition  of  rights  arising  in  another  state,  than  in 
the  subject  of  marriages.  It  is  the  policy  of  the  law  to 
sustain  a  marriage;  preserve  legitimacy;  protect  prop- 
erty rights ;  and  promote  its  own  social  welfare,  in  rec- 
ognizing as  valid  within  its  limits,  a  marriage  celebrated 
under  the  laws  of  a  neighboring  state.  So  therefore, 
this  general  rule  requires  no  vindication  on  social 
grounds. 

The  decisions  that  establish  that  general  principle 
disclose  some  extreme  cases  in  which  the  principle  of 
Comity  was  applied  just  to  uphold  a  marriage  for  the 
public  good.  As  an  example,  there  is  Commonwealth 
v.  Lane,  113  Mass.  458,  18  Am.  R.  509.  In  that  case, 
Massachusetts  had  a  statute  prohibiting  the  remarriage 
of  a  guilty  divorced  party ;  making  such  a  marriage  void ; 
and  adjudging  the  party  guilty  of  polygamy  for  a  viola- 


80  CONFLICT  OF  LAWS 

tion.  B  was  a  divorced  man;  he  withdrew  from  Mass- 
achusetts, and  remarried  in  New  Hampshire,  where 
there  was  no  such  statute.  On  his  return  to  Massachu- 
setts he  was  indicted  for  polygamy.  The  Court  held 
he  was  not  guilty,  because  the  validity  of  the  marriage 
was  regulated  by  New  Hampshire  law  where  it  was 
celebrated.  And  being  valid  by  the  lex  celebrationis, 
it  was  valid  in  Massachusetts  under  the  general  rule 
of  Comity.  The  case  is  sound.  It  simply  shows  the 
lengths  to  which  a  Court  will  go  in  recognizing  a  mar- 
riage celebrated  in  another  state  and  valid  under  those 
laws,  although  contrary  to  its  own. 

Sec.  29.  But  that  general  principle  is  subject  to  limi- 
tation. Certainly  it  is  true  that  a  marriage  valid  in 
one  state  is  valid  in  all  states.  But  it  is  truer  still, 
that  no  state  will  recognize  a  marriage  celebrated  in 
another  if  such  a  marriage  is  in  violation  of  its  public 
policy.  This  is  an  abiding  exception  to  the  general 
principle  of  Comity,  and  it  has  a  very  decided  appli- 
cation in  the  law  of  marriage.  Hence,  a  marriage  valid 
in  one  state  is  generally,  but  not  necessarily,  valid  in 
another  state.  It  is  invalid  if  it  infringes  its  own  do- 
mestic policy.  Now  then,  with  respect  to  a  marriage, 
when  is  it  in  violation  of  public  policy?  We  know  all 
states  have  marriage  laws.  And  we  know  that  those 
laws  differ  in  the  various  states.  And  yet  we  also  know 
that  if  a  marriage  is  valid  in  one  state  it  does  not  vio- 
late the  public  policy  of  another  state  merely  because 
it  would  be  void  if  celebrated  there.  Eefer  again  to 
the  case  just  cited,  Commonwealth  v.  Lane,  113  Mass. 
458,  18  Am.  R.  509.  In  that  very  case,  the  Massachu- 
setts Court  upheld  a  marriage  which,  had  it  been  sol- 
emnized in  Massachusetts,  would  have  been  invalid.  The 
mere  fact  that  there  was  a  difference  on  the  subject 
of  marriage  between  New  Hampshire  law  and  Mass- 
achusetts law,  did  not  show  that  the  marriage  violated 
the  local  public  policy  of  Massachusetts.  Well  then, 
if  a  difference  in  the  law  of  the  two  states  does  not 


MARRIAGE  81 

show  a  difference  in  public  policy  so  as  to  invalidate 
the  marriage,  how  is  public  policy  determined  1  To 
this  difficult  question  we  can  give  only  a  general  reply. 
And  that  is,  that  if  a  marriage  violates  the  laws  of  a 
state  on  moral  grounds,  it  antagonizes  its  public  policy 
and  will  not  be  recognized.  In  our  discussion  of  Comity, 
we  had  occasion  to  discuss  this  identical  principle.  We 
stated  that  as  a  general  rule  a  right  arising  in  one  state 
is  enforcible  in  all  states.  But,  we  stated  as  an  excep- 
tion, a  right  will  not  be  enforced  if  it  violates  local 
public  policy.  And  we  further  stated  that  public  policy 
is  essentially  a  moral  question.  These  general  prin- 
ciples apply  to  marriages.  A  marriage  celebrated  in 
one  state  will  not  be  recognized  in  another  if  its  rec- 
ognition would  contravene  the  moral  standards  that 
prevail  in  the  state. 

But  this  introduces  another  problem.  How  do  we 
determine  the  moral  standards  of  a  state?  Naturally, 
by  consulting  its  law,  common  and  statutory,  as  a  whole. 
Of  course,  there  is  considerable  law  on  the  subject  of 
marriage.  Not  all  of  it  declares  a  rule  of  public  policy, 
in  the  restricted  sense  in  which  we  are  using  the  term 
here.  If  the  law,  whether  it  be  a  rule  of  the  common 
law  or  the  terms  of  a  statute,  embodies  some  definite 
moral  principle;  was  intended  to  prevent  some  particular 
social  evil;  then  that  law  declares  a  principle  of  public 
policy. 

That  public  policy,  as  the  term  is  used  in  the  CON- 
FLICT OF  LAWS  and  especially  in  Marriages,  is 
fundamentally  a  moral  question,  is  directly  held  in 
Wilson  v.  Cook,  256  HI.  460,  100  N.  E.  222.  The  valid- 
ity of  the  marriage  arose  in  dower  proceedings.  Illinois 
had  a  statute  prohibiting  the  remarriage  of  either  party 
to  a  divorce;  making  such  a  remarriage  void;  and  ad- 
judging a  party  violating  it  guilty  of  bigamy.  The 
defendant  A,  who  had  obtained  a  divorce  in  Illinois, 
withdrew  to  Missouri  where  he  remarried,  and  later 
returned  to  live  in  Illinois.  The  Court  held  that  the 
Missouri  marriage  was  void,   because  in  violation  of 


82  CONFLICT  OF  LAWS 

the  public  policy  of  Illinois,  as  declared  by  the  statute. 
And  the  Court  expressed  its  opinion  in  these  words: 
"Where  a  state  has  enacted  a  statute  lawfully  imposing 
upon  its  citizens  an  incapacity  to  contract  marriage  by 
reason  of  a  positive  policy  of  the  state  for  the  protec- 
tion of  the  morals  and  good  order  of  society  against 
serious  social  evils,  a  marriage  contracted  in  disregard 
of  the  prohibition  of  the  statute,  wherever  celebrated, 
will  be  void."  So  therefore,  in  this  case  it  was  held 
that,  although  the  marriage  was  valid  in  Missouri  where 
it  was  celebrated,  it  was  void  in  Illinois  where  its  valid- 
ity was  questioned,  because  in  violation  of  its  local 
public  policy.  That  is,  it  not  only  violated  its  laws, 
but  it  transgressed  its  moral  precepts  as  evidenced  by 
those  laws,  and  was  therefore  invalid. 

Now,  on  again  referring  to  the  previous  case  of  Com- 
monwealth v.  Lane,  113  Mass.  458,  18  Am.  E.  509  we 
find  a  very  similar  state  of  facts.     And  yet  there  the 
Court  held  that  the  marriage  was  valid  and  did  not 
violate  public  policy.    Are  these  decisions  reconcilable  f 
Yes,  but  they  involve   a  fine  distinction.     It  is   this: 
in  the  law  of  marriage  there  is  a  difference  between 
a  disability  and  a  penalty.     Both  of  course,  are  im- 
posed by   statute.     A  disability  prohibits   a  marriage 
and  makes  it  void.     And  if  the  party  contracts  a  mar- 
riage in  violation  of  it,  either  in  the  state  or  out  of  the 
state,   the   marriage  is  void  as  against  public  policy. 
And  a  disability,  it  is  to  be  noted,  is  an  incapacity  that 
operates  on  both  parties  to  the  marriage.    Those  prin- 
ciples were  applied  in  Wilson  v.  Cook,  256  111.  460,  100 
N.  E.  222  where  the  statute  imposed  an  incapacity  to 
marry  on  both  parties,  and  hence  it  was  a  disability, 
and  therefore   made   the  marriage  void  whether   con- 
tracted within  or  without  the  state.    On  the  other  hand, 
a  penalty  is  different.    A  penalty  prohibits  a  marriage 
and  makes  it  void.    And  if  the  party  contracts  a  mar- 
riage in  violation  of  it  in  the  state,  the  marriage  is  void. 
But  here  is  the  material  point.    A  penalty  is  an  inca- 
pacity that  operates  only  on  one  of  the  parties  as  a 
punishment  for  his  guilt  in  the  divorce.     The  statute 


MAERIAGE  83 

in  such  a  case  is  therefore  punitive,  and  involves  no 
question  of  morals  or  public  policy,  except  in  an  indirect 
way.  And  being  penal,  the  statute  operates  locally  only 
in  the  state  that  enacted  it.  It  has  no  exterritorial 
effect.  It  does  not  operate  on  the  party  when  he  with- 
draws and  contracts  a  marriage  in  another  state.  When 
he  therefore  marries  in  that  state,  he  is  under  no  dis- 
ability or  incapacity  there,  and  the  marriage  is  valid. 
Being  valid  in  such  a  case  by  the  lex  celebrationis,  it  is 
valid  in  the  state  whose  very  laws  the  party  has  suc- 
cessfully and  contemptuously  evaded.  And  that  was  the 
identical  situation  in  Commonwealth  v.  Lane,  113  Mass. 
458,  18  Am.  R.  509.  The  statute  in  that  case  prohibited 
the  guilty  party  only,  to  marry.  Its  purpose  was  simply 
to  penalize  him  for  his  adultery.  There  was  no  general 
moral  policy  behind  that  statute.  And  acting  on  him 
alone,  it  imposed  a  penalty  which  prohibited  him  from 
marrying  only  in  Massachusetts.  Hence,  when  he  with- 
drew to  New  Hampshire  and  married,  he  was  no  longer 
subject  to  the  penal  incapacity  of  Massachusetts;  the 
marriage  was  valid  in  New  Hampshire ;  and  being  valid 
in  that  state,  the  lex  celebrationis,  was  upheld  in  Mass- 
achusetts on  the  ground  of  Comity. 

And  here  we  can  generalize  this  branch  of  the  sub- 
ject before  discussing  the  law  of  marital  property.  The 
general  rule  is  that  the  validity  of  a  marriage  is  gov- 
erned by  the  laws  of  the  state  where  it  is  celebrated. 
If  it  is  valid  there,  it  is  valid  in  all  states  under  the 
rules  of  Comity.  But  as  an  exception,  such  a  marriage 
will  not  be  recognized  if  it  violates  local  public  policy. 
And  lastly,  if  a  party  under  a  penal  incapacity  contracts 
a  marriage  in  another  state  in  evasion  of  his  own  state 
law,  the  marriage  will  be  recognized,  because  a  penalty 
against  marriage  has  no  operation  outside  the  state  that 
imposes  it. 

Sec.  30.  In  the  foregoing  discussion,  we  presented  the 
law  that  governs  marriage  as  a  purely  personal  relation. 
We  now  propose  to  develop  briefly  the  principles  that 
govern  the  property  relations  of  husband  and  wife.    It 


84  CONFLICT  OF  LAWS 

lias  been  said  that  marriage  creates  property  rights. 
That  is,  both  during  the  marriage  and  after  its  dissolu- 
tion, each  party  has  by  law,  certain  rights  in  the  per- 
sonal or  real  estate  of  the  other.  But  the  laws  of  the 
states  differ.  Some  states  are  liberal  with  the  husband. 
Others  are  liberal  with  the  wife.  Some  make  a  distinc- 
tion as  to  the  nature  of  the  property,  while  others  do 
not.  In  other  words,  there  is  a  considerable  CONFLICT 
OF  LAWS  respecting  the  marital  rights  of  husband 
and  wife.  Now  then,  if  a  controversy  arises  between 
them  as  to  their  respective  rights  in  property,  which 
law  prevails?  Of  course,  it  is  evident  after  our  dis- 
cussion of  CONFLICT  OF  LAWS  so  far,  that  there 
is  a  vital  distinction  between  real  and  personal  property. 
Real  property  is  fixed  and  stationary.  It  is  necessarily 
local.  The  rights  of  parties  in  it  are  always  governed 
by  the  law  of  the  state  where  it  is  located,  because  it  is 
exclusively  subject  to  those  laws.  This  rule  is  universal. 
There  are  no  exceptions  to  it.  Hence,  the  rights  of  the 
parties  in  marital  real  estate  are  always  determined  by 
the  law  of  the  state  where  it  is  located.  Being  located 
in  a  certain  state,  it  is  within  the  limits  of  that  state; 
and  being  within  its  limits,  the  rights  of  the  parties  in 
that  property  are  denned  by  the  lex  loci  rei  sitae,  the 
law  of  its  location.  This  general  principle  is  so  very 
simple  that  it  does  not  require  illustration.  In  fact, 
the  general  rule  is  so  absolute  in  its  scope  and  so  un- 
yielding in  its  operation,  that  the  parties  cannot  by 
their  own  contracts,  substitute  another  law  to  govern 
their  real  property  rights.  It  is  a  rule  in  the  CON- 
FLICT OF  LAWS,  that  the  jurisdiction  of  the  state 
where  the  real  property  is  located,  to  define  the  marital 
rights  of  the  parties  is  exclusive.  It  cannot  be  modified 
by  the  parties. 

The  principle  was  applied  in  Richardson  v.  Degiver- 
ville,  107  Mo.  432,  17  S.  W.  974.  The  facts  were  briefly, 
that  the  parties  prior  to  their  marriage  in  France,  made 
an  antenuptial  contract  in  which  it  was  agreed  that  all 
personal  property  acquired  by  them  was  to  be  regarded 


MARRIAGE  85 

as  the  community  property  of  both  and  not  the  separate 
property  of  each  of  them.  The  parties  subsequently 
removed  to  Missouri  where  the  wife  owned  real  property. 
Under  the  Missouri  law  in  such  a  case,  the  husband  had 
a  life  estate  in  such  property.  The  wife  however,  by 
an  agent,  agreed  to  sell  the  property  to  A,  the  plaintiif 
in  the  action,  and  on  her  refusal  to  convey,  he  brought 
specific  performance.  The  Court  held  he  could  not  re- 
cover. It  said  that  the  property  was  owned  not  by  her 
alone,  but  jointly  with  her  husband.  That  is,  since  the 
real  property  was  located  in  Missouri,  the  rights  of  the 
parties  therein  were  regulated  by  Missouri  law,  and 
under  that  law  husband  and  wife  owned  the  property 
together.  Consequently,  the  wife  alone  could  not  make 
a  valid  contract  to  sell  it,  and  specific  performance  could 
not  be  enforced.  The  decision  is  sound.  It  is  instructive 
because  the  facts  showed  both  real  and  personal  estate 
was  involved,  but  of  course,  only  the  realty  was  in  dis- 
pute. The  Court  was  right  in  holding  that  the  rights 
of  the  parties  in  marital  real  property  are  regulated 
by  the  law  of  its  location.  And  further,  I  believe  it 
can  be  deduced,  not  only  does  that  law  govern  their 
rights,  but  they  cannot  by  contract,  agree  that  their 
rights  in  real  property  be  governed  by  any  other  law. 
Because,  as  has  been  stated,  real  property  is  stationary. 
It  is  in  fact  a  physical  part  of  the  state  in  which  it  is 
located;  it  is  therefore  subject  to  the  laws  of  that  state 
only;  and  no  contract  between  the  parties  can  exclude 
its  jurisdiction  with  respect  to  it. 

Sec.  31.  The  rights  of  the  parties  in  marital  personal 
estate  however,  are  entirely  different.  Personal  prop- 
erty occupies  a  unique  position  in  the  CONFLICT  OF 
LAWS.  It  is  not  subject  to  any  uniform  rule.  In  some 
cases,  it  is  subject  to  the  laws  of  the  state  where  it  is 
located.  But  in  others,  it  is  governed  by  the  law  of  the 
owner's  domicile.  And  this  is  the  principle  that  applies 
in  deciding  rights  in  marital  personalty.  This  law  of 
the  domicile  is  applicable  not  only  with  reference  to 


86  CONFLICT  OF  LAWS 

rights  during  the  marriage,  but  also  with  reference  to 
rights  in  such  property  on  the  death  of  one  of  the  parties. 
In  other  words,  in  the  law  of  marriage  the  location  of 
personal  property  is  in  the  state  where  its  owner  is 
domiciled.  He  can  be  domiciled  in  one  state,  and  the  prop- 
erty be  actually  in  another  state,  and  still,  by  force  of  this 
legal  fiction,  its  legal  location  is  where  he  is  permanently 
and  actually  a  resident.  There  was  a  time  in  the  history 
of  the  CONFLICT  OF  LAWS  when  the  domicile  of  the 
owner  fixed  the  location  of  personal  property  for  all 
purposes.  But  that  once  universal  rule  is  now  only 
general.  So  that  by  legal  fiction,  since  personalty  is 
movable  and  portable  and  generally  follows  its  owner, 
the  law  imputes  to  it  a  location  for  marital  purposes, 
in  that  state  where  he  is  domiciled.  So  therefore,  the 
rights  of  one  party  in  marital  personalty  owned  by  the 
other,  are  regulated  not  by  the  law  of  the  state  where 
it  is  actually  located,  but  by  the  law  of  that  state  where 
it  is  fictitiously  located,  that  is,  at  the  domicile  of  its 
owner,  be  it  husband  or  wife,  because  they  have  a  com- 
mon identical  domicile  in  marriage.  That  is  the  gen- 
eral law  on  the  whole  subject. 

But  a  few  more  words  can  be  said.  It  has  been  stated 
that  personal  property  is  movable,  and  portable  and  is 
occasionally  taken  out  of  the  state  where  the  owner  is 
domiciled,  into  another  state.  This,  of  course,  does  not 
change  the  situation  in  law.  It  is  clear,  as  has  been 
shown,  that  the  rights  of  a  wife  in  the  husband's  per- 
sonal estate  are  governed  by  the  law  of  the  state  where 
he  was  domiciled  at  the  time  he  acquired  it.  A  valuable 
decision  in  which  this  phase  of  the  subject  was  involved 
is  Depas  v.  Mayo,  11  Mo.  314,  49  Am.  D.  88.  The  facts 
were  that  A  and  B  married  parties,  were  domiciled  in 
Louisiana.  By  the  laws  of  that  state,  B,  the  wife  was 
entitled  to  a  half  of  all  the  personalty  owned  by  A  the 
husband.  He  acquired  a  considerable  sum  of  money  in 
Louisiana,  and  taking  it  with  him  went  to  Missouri, 
where  he  purchased  a  piece  of  real  property.  She  sued 
in  Missouri  by  an  equity  action  to  establish  a  trust 


MARRIAGE  87 

against  it.  The  Missouri  Court  held  she  could  recover. 
It  held  that  the  parties  were  domiciled  in  Louisiana; 
by  the  law  of  the  domicile,  the  wife  had  title  to  one 
half  the  money;  that  when  the  husband  removed  it  to 
Missouri  she  retained  her  title;  and  that  investing  it 
in  real  property  there  simply  changed  its  form,  but  did 
not  divest  the  rights  she.<already  had  under  the  Louisiana 
law.  The  case  of  course  involved  real  property.  But 
she  did  not  assert  her  rights  in  it  as  real  property. 
She  contended  that  in  its  original  form  as  personalty 
she  had  title  to  one  half;  that  that  title  being  vested 
in  Louisiana,  the  law  of  the  domicile,  was  not  divested 
by  removal  to  Missouri ;  and  that  an  unauthorized  change 
of  it  into  real  estate  did  not  alter  the  transaction.  That 
case  is  good  law.  It  is  authority  in  affirming  that  the 
marital  rights  of  the  parties  in  personalty  are  regulated 
by  the  law  of  the  domicile.  And  it  is  also  authority 
in  declaring  that  the  marital  rights  of  the  parties  in 
personalty  are  governed  by  the  law  of  the  domicile 
at  the  time  the  property  was  acquired.  And  finally  it 
is  authority  in  deciding  that  if,  by  the  domiciliary  law, 
a  right  has  vested  in  one  state,  it  can  be  asserted  against 
the  property  either  in  its  original  or  in  its  changed 
form  in  any  other  state,  under  the  omnipotent  principle 
of  Comity. 


LEGITIMACY  AND  ADOPTION 

CHAPTER  IX 

Rule:  THE  LAW  OF  THE  STATE  WHERE  THE  INFANT  IS 
DOMICILED,  DETERMINES  VALIDITY  OF  LEGITIMACY  OR 
ADOPTION.l 

Rule:  SUCH  LEGITIMATE  OR  ADOPTED  CHILD  CAN  ASSERT 
IN  ANOTHER  STATE,  ALL  THE  LEGAL  RIGHTS  THAT  LOCAL 
LAWS  GRANT  TO  DOMESTIC  CHILDREN.2 

Sec.  32:  The  CONFLICT  OF  LAWS  extends  its  ap- 
plication to  every  subject  in  the  law.  We  have  selected 
a  few  of  the  particular  subjects  however,  which  because 
of  their  difficulty  and  their  practical  importance,  require 
special  attention.  Among  them  are  the  topics  of  Legit- 
imacy and  Adoption.  No  doubt,  we  have  all  studied 
Domestic  Relations.  We  have  learned  that  every  person 
has  a  status  in  the  law.  That  is,  every  person  is  legally 
classifiable  as  either  an  adult  or  an  infant.  And  if  he 
is  an  infant,  he  is  of  course  generally  a  natural  born 
legitimate  child.  But  that  is  not  always  the  case.  Some 
infants  are  illegitimate.  And  others  are  merely  adopted. 
These  various  forms  of  infancy  differ  from  each  other 

1 — Smith    vs.    Kelly,    23    Miss.  Dayton  vs.  Adkisson,  45  N.  J.  E. 

167,    55    Am.    D.    87;    Blythe    vs.  603,  17  Atl.  964;  Earl  vs.  Godley, 

Ayres,    96   Cal.   532,   31  Pac.   915;  42  Minn.  361,  44  N.  W.  254;  Fow- 

FOWLER   VS.   FOWLER,    131   N.  ler  vs.  Fowler,  131  N.  C.  169,  42 

C.  169,  42  S.  E.  563;  IRVING  VS.  S.   E.    563;    Irwing   vs.    Ford,   183 

FORD,   183  MASS.   448,  67  N.   E.  Mass.  448,  67  N.  E.  366;  Schick  vs. 

366.     See:     Greenhow  vs.   James,  Howe,  137  la.  249,  114  N.  W.  916; 

80  Va.  636,  56  Am.  R.  603;   Earl  Contra:     Succession   of   Petit,   49 

vs.  Godley,  42  Minn.  361,  44  N.  W.  La.  Ann.  625,  21  So.  717;  BROWN 

254  VS.    FINLEY,    157   ALA.    424,    47 

2— Smith  vs.  Kelly,  23  Miss.  167,  SO.  577;   See:     Blythe  vs.  Ayres, 

55   Am.   D.   87;    ROSS  VS.  ROSS,  96  Cal.  532,  31  Pac.  915. 
129   MASS.   243,   37   AM.   R.   321; 

88 


LEGITIMACY  AND  ADOPTION  89 

in  respect  of  personal  and  property  rights.  So  therefore, 
it  is  a  vital  question  in  many  a  case  as  to  the  actual 
status  of  a  person.  And  if  his  status  is  to  be  deter- 
mined, which  law  determines  it?  Naturally  there  can 
be  but  one  reply  to  this  question.  And  wo  have  in  our 
antecedent  discussion  of  Contracts,  indicated  the  solu- 
tion of  the  problem.  In  discussing  Contracts,  we  said 
incidentally,  that  the  status  of  a  person  is  always  de- 
termined by  the  law  of  the  state  where  he  is  domiciled. 
Here,  we  affirm  that  principle  directly.  And  why  is 
the  domiciliary  law  operative?  Because  the  status  of 
a  person  involves  his  personal  standing  in  the  com- 
munity. It  decides  primarily  his  legal  personal  condi- 
tion with  respect  to  all  others.  The  law  assigns  to  all 
persons  a  definite  status.  That  is,  it  decides  whether 
they  are  adult  or  infant.  And  if  infant,  it  classifies 
them  into  legitimate,  illegitimate  and  adopted.  And 
having  made  the  proper  classification,  it  confers  on  them 
certain  rights  and  invests  them  with  certain  disabilities. 
So  it  is  therefore,  that  the  status  of  a  person  is  fixed 
by  law.  And  it  is  fixed  by  the  law  of  his  domicile, 
because  it  determines  his  personal  rights  and  obligations 
with  respect  to  others.  Hence,  the  identification  in  the 
CONFLICT  OF  LAWS,  of  status  with  domicile. 

Now  then,  since  the  status  of  a  person  is  fixed  by 
the  law  of  his  domicile,  where  is  his  domicile?  This 
is  a  preliminary  question  in  all  problems  of  legitimacy 
and  adoption.  The  status  of  a  child  depends  on  the 
law  of  his  domicile,  but  the  location  of  the  domicile 
is  necessary  to  a  decision  as  to  whether  he  is  illegitimate, 
legitimate  or  adopted.  In  reference  to  infants,  as  a 
general  rule,  the  domicile  of  an  infant  is  that  of  his 
father.  The  infant,  to  begin  with,  because  of  his  infancy, 
is  under  a  legal  disability.  He  cannot  establish  his  own 
separate  domicile;  that  is  the  exclusive  right  of  the 
father.  The  father  has  custody  of  him,  and  can  there- 
fore create  a  domicile  of  his  own  choice,  and  when  he 
has  done  so,  the  domicile  of  the  infant  is  fixed  there 
by  necessity.     So  then,  the  domicile  of  the  infant  is 


90  CONFLICT  OF  LAWS 

the  domicile  of  his  father.  And  when  the  father  changes 
his  own  domicile,  he  necessarily  changes  the  infant's 
domicile,  because  it  is  derivative  and  accompanies  that 
of  the  father,  regardless  of  the  physical  residence  of 
the  infant.  And  if  the  father  is  dead,  since  the  right 
of  custody  survives  to  the  mother,  her  domicile  fixes 
the  domicile  of  the  infant  on  similar  grounds.  So,  gen- 
erally speaking,  the  domicile  of  the  infant  is  in  that 
state  where  the  father  has  his  permanent  actual  resi- 
dence. And  if  he  is  deceased,  it  is  in  that  state  where 
the  surviving  mother  has  retained  or  established  a  per- 
manent domestic  establishment.  These  principles  are 
elementary. 

As  a  result,  if  the  question  in  a  case  is,  what  is  the 
status  of  the  infant,  the  law  of  the  domicile  must  be 
consulted  to  determine  legitimacy  or  adoption.  Because, 
that  law,  the  domiciliary  law,  fixes  his  status,  and  con- 
sequently decides  whether  he  possesses  one  or  the  other 
of  these  forms  of  personal  capacity.  Hence,  to  speak 
in  concrete  terms,  if  a  child  is  a  resident  of  Virginia, 
but  legally  domiciled  in  Massachusetts,  because  its  father 
is  domiciled  in  that  state,  whether  it  is  a  legitimate 
child  or  not,  is  determined  by  Massachusetts  law.  Those 
were  the  facts  in  Irving  v.  Ford,  183  Mass.  448,  67  N.  E. 
366.  It  further  appeared  in  the  case,  that  by  Virginia 
law  where  the  child  was  physically  resident,  mere  rec- 
ognition of  an  illegitimate  child  made  it  legitimate; 
whereas  by  Massachusetts  law,  where  the  father  was 
domiciled,  recognition  and  marriage  of  the  mother  were 
both  essential  to  legitimation.  The  child  brought  an 
action  in  Massachusetts  to  recover  a  distributive  share 
in  the  estate  of  its  deceased  father.  And  the  question 
thereupon  was,  whether  it  was  legitimate.  Since  legiti- 
macy is  determined  by  the  law  of  the  father's  domicile; 
and  the  law  in  force  in  Massachusetts  required  recog- 
nition and  marriage  combined;  and  these  acts  were  not 
done,  there  was  no  legitimation  in  accordance  with  the 
lex  domicilii,  and  therefore  the  child  was  held  illegiti- 
mate and  had  no  right  to  inherit.    The  case  is  especially 


LEGITIMACY  AND  ADOPTION  91 

interesting,  because  the  child  was  an  actual  resident  of 
Virginia;  and  since  its  laws  regarded  mere  recognition 
as  a  legitimation,  he  would  in  Virginia  be  a  legitimate 
child,  had  its  laws  governed  the  case.  With  reference 
to  this  branch  of  the  case  however,  the  Court  said: 
"If  by  the  law  of  the  fathers  domicile,  legitimation  is 
not  the  result  of  the  acts  claimed  to  have  that  effect, 
though,  under  the  bastard's  domiciliary  law,  legitimation 
would  result  therefrom,  the  status  of  legitimation  should 
not  be  conferred  upon  the  bastard,  for  that  would  be 
to  subject  the  status  of  the  father  to  a  law  to  which 
it  is  not  properly  subject." 

The  decision  is  unimpeachable.  It  enforces  very 
strictly  the  general  principle  that  the  status  of  an  infant 
is  regulated  exclusively  by  the  law  of  the  state  in  which 
he  is  legally  domiciled.  The  laws  of  the  father's  do- 
micile alone  must  be  consulted  to  determine  what  acts 
are  necessary  to  legitimate  an  infant;  and  if  those  laws 
require  certain  acts,  and  they  are  not  done,  the  child 
never  attained  the  status  of  legitimacy.  Naturally,  the 
general  principle  governs  adoption  proceedings.  Here 
also,  we  have  simply  another  application  of  the  domicil- 
iary law.  So  therefore,  the  question  as  to  whether  an 
infant  has  been  validly  adopted  depends  on  the  laws  in 
force  in  its  legal  domicile. 

Sec.  33.  In  the  preceding  section,  it  was  shown  that 
the  domicile  of  an  infant  is  in  that  state  where  the 
father  has  established  a  permanent  legal  residence.  And 
it  was  also  shown  that  the  law  of  the  state  in  which 
he  is  domiciled  determines  whether  he  is  legitimate, 
illegitimate  or  adopted. 

We  now  take  up  the  second  phase  of  the  subject.  It 
can  be  stated  in  interrogatory  form:  If  an  infant  is 
domiciled  in  one  state  and  legitimate  or  adopted  under 
its  laws,  can  he  go  into  another  state  and  assert  there 
all  the  personal  and  property  rights  its  laws  confer 
upon  domestic  children?  The  Massachusetts  Court  was 
confronted  with  this  problem  in  the  case  of  Ross  v.  Ross, 


92  CONFLICT  OF  LAWS 

129  Mass.  243,  37  Am.  R.  321.  The  facts  were  that  A, 
an  infant  was  domiciled  in  Pennsylvania,  where  he  re- 
sided with  his  parents.  Later  however,  he  was  adopted 
by  C,  by  regular  judicial  proceedings  had  in  Pennsyl- 
vania. C  died  some  time  afterward,  and  A,  the  infant 
sues  to  recover  an  intestate  share  in  real  property  owned 
by  C  in  Massachusetts.  The  Court  held  C  could  recover. 
It  held  that  C  was  domiciled  in  Pennsylvania;  that  he 
was  adopted  regularly  under  its  laws;  that  he  thereby 
acquired  the  status  of  an  adopted  child  there;  and  be- 
ing adopted  in  one  state,  his  status  of  adoption  would 
be  recognized  in  Massachusetts  on  principles  of  Comity. 
To  use  the  Court's  own  language:  ''We  are  therefore 
of  the  opinion  that  the  legal  status  of  the  child  of  the 
intestate,  once  acquired  by  the  demandant  under  a  stat- 
ute and  by  a  judicial  decree  of  the  state  of  Pennsyl- 
vania, while  the  parties  were  domiciled  there,  continued 
after  their  removal  into  this  Commonwealth,  and  that 
by  virtue  thereof,  the  demandant  is  entitled  to  maintain 
this  action." 

A  few  words  of  explanation  are  necessary  however, 
before  we  conclude  this  subject.  It  is  to  be  noted  that 
the  infant  asserted  his  status  as  an  adopted  child  by 
virtue  of  Pennsylvania  law ;  but,  he  was  given  the  right 
to  inherit  the  real  property  by  virtue  of  Massachusetts 
law.  That  is,  his  status  as  an  adopted  child  was  recog- 
nized in  Massachusetts,  and  recognizing  that  status,  the 
Massachusetts  Court  recognized  all  its  incidents  as  de 
fined  by  its  own  laws  and  one  of  those  incidents  was 
the  right  of  inheritance.  Therefore,  his  status  was  of 
Pennsylvania  origin,  but  his  right  to  inherit  was  derived 
directly  from  the  Massachusetts  law;  and  he  was  allowed 
to  recover  the  property  because  by  coincidence,  Penn- 
sylvania law  conferred  the  right  of  inheritance  on  all 
adopted  children. 

The  case  is  the  leading  American  authority.  It  con- 
tains an  exhaustive  discussion  of  the  law  in  reference 
to  adoptions  and  the  consequent  rights  of  adopted  chil- 
dren in  the  states  of  the  Union.     There  is  no  more 


LEGITIMACY  AND  ADOPTION  93 

instructive  decision  in  all  the  Eeports  than  the  Ross 
case.  So  then,  in  conclusion,  a  status  validly  acquired 
in  one  state  will  be  recognized  in  all  other  states;  and 
incidentally,  the  infant  will  be  given  under  the  local 
laws,  all  the  rights,  but  be  subject  to  all  the  disabilities, 
of  domestic  children;  proving,  as  was  insisted  in  our 
early  discussion  of  Comity,  that  its  principles  pervade 
the  whole  subject  of  the  CONFLICT  OF  LAWS. 


94  CONFLICT  OF  LAWS 

of  the  state  where  it  is  located;  because  being  located 
there,  it  is  subject  to  its  laws;  and  being  subject  to 
its  laws,  title  to  it  is  governed  by  those  laws  exclusively. 

But  the  foundation  of  the  general  rule  in  reference 
to  personal  property  is  entirely  different.  In  the  CON- 
FLICT OF  LAWS  personal  property  is,  by  a  legal  fic- 
tion, deemed  to  be  located  in  that  state  where  the  tes- 
tator is  domiciled,  regardless  of  where  the  property  is 
actually  located.  That  is,  the  fiction  dominates  the  fact. 
And  its  basis  is,  that  since  personal  property  is  movable 
and  portable  and  generally  located  where  the  owner  is 
domiciled,  it  is  regarded  as  being  in  that  state  with  him, 
and  therefore  subject  to  the  domiciliary  law.  So  there- 
fore, all  questions  in  Wills  that  pertain  to  personal  prop- 
erty are  governed  by  the  law  of  the  state  where  the 
testator  was  domiciled. 

This  question  arose  in  Cross  v.  U.  8.  Trust  Co.,  131 
N.  Y.  330,  30  N.  E.  125  in  which  the  facts  were,  that  a 
testatrix  domiciled  in  Pennsylvania  made  a  will  dispos- 
ing of  considerable  personal  estate  located  in  New  York. 
Some  time  after  her  death,  an  action  was  brought  in 
New  York  to  have  a  trust  in  the  will  declared  void,  be- 
cause it  violated  the  law  of  New  York,  although  it  was 
valid  by  the  Pennsylvania  law.  The  Court  dismissed  the 
action.  It  was  held  that  it  was  a  will  of  personal  prop- 
erty; that  its  validity  in  whole  or  in  part  was  governed 
by  the  law  of  the  testator's  domicile;  and  being  valid 
there,  would  be  recognized  as  a  valid  testamentary  dis- 
position of  the  property,  although  it  was  actually  lo- 
cated in  New  York.  Now,  there  is  another  interesting 
point  in  the  case.  The  plaintiffs  having  failed  to  set  aside 
the  will  on  the  ground  that  it  did  not  comply  with  the 
New  York  law,  sought  to  impeach  it  on  another  ground. 
They  contended  that  even  though  it  was  valid  by  the 
domiciliary  law  of  Pennsylvania,  it  should  be  held  in- 
valid in  New  York  because  contrary  to  its  public  policy. 
But  there  again  the  Court  decided  against  them.  It  held 
that  since  it  was  valid  in  Pennsylvania,  it  would  be 
recognized  as  valid  in  New  York;  and  further,  that  it 


Erratum 

Tiernan  Conflict  of  Law:-. 

Read  page  94  as  page  95  and  vice  versa. 


WILLS 
CHAPTER  X 

Rule:  THE  VALIDITY,  CONSTRUCTION  AND  REVOCATION  OF 
A  WILL  ARE  REGULATED  BY  LAW  OF  TESTATORS  DOMICILE  IF 
IT  INVOLVES  PERSONALTY;  OR  THE  LAW  OF  THE  LOCATION 
IF  IT  INVOLVES  REALTY.l 

Rule:  THE  RIGHT  OF  ELECTION  UNDER  A  WILL,  WHETHER 
OF  REALTY  OR  PERSONALTY,  IS  DETERMINED  BY  LAW  OF 
TESTATORS  DOMICILED 

Sec.  34.  The  CONFLICT  OF  LAWS  with  reference 
to  Wills  can  be  simplified  considerably  by  the  statement 
of  two  general  propositions.  One  is,  that  all  questions 
that  pertain  to  a  will  of  real  property  are  governed 
by  the  law  of  the  state  where  it  is  located.  And  the 
other  is,  that  all  questions  that  pertain  to  a  will  of 
personal  property  are  governed  by  the  law  of  the  dom- 
icile. Of  course,  those  two  general  rules  do  not  require 
extended  discussion.  As  regards  realty,  all  questions 
in  Wills  that  pertain  to  it,  such  as  its  validity  or  revo- 
cation or  construction,  are  governed  by  the  law  of  the 
location.  There  is  no  exception  to  this  general  rule. 
It  is  a  principle  of  jurisdiction  that  the  title  to  real 
property,  derived  from  a  will,  is  regulated  by  the  law 

1— CROSS  VS  TRUST  CO.,   131  153    MASS.    197,    26    N.    E.    404; 

N.   Y.   330,   30   N.   E.   125;    In   Re  HOPE   VS.   BREWER,    136   N.   Y. 

Ferguson's  Will  (1902)  1  Ch.  483,  126,  32  N.   E,   558;    Northwestern 

2    B.    R.    C.    552;    CASTENS    VS.  Mas.  Aid.  Ass'n  vs.  Jones,  154  Pa. 

MURRAY,   122  GA.  396,  50  S.  E.  St.  99,  26  Atl.   253;    Brandeis  vs. 

131;   Mount  vs.  Tuttle,  183  N.  Y.  Atkins,   204   Mass.   471,   90   N.   E. 

358,    76    N.    E.    873;     PEET    VS.  861. 

PEET,  229  ILL.  341,  82  N.  E.  376;  2— Douglas-Menzies  vs.  Umphel- 

(Contra:    LINCOLN  VS.  PERRY,  by,    (1908)    A.  C.  224,   3  B.  R.  C. 

149  MASS.  368,  21  N.E.  671);  See:  509;    MARTIN   VS.   BATTEY,    87 

AMER.  BIBLE  SOC.  VS.  HEALY,  KANS.  582,  125  PAC.  88. 

95 


96  CONFLICT  OP  LAWS 

was  not  contrary  to  its  public  policy.  With  respect  to 
this  branch  of  the  case  it  was  said:  "It  does  not  follow 
that  a  trust  created  by  the  laws  of  another  state  is  con- 
trary to  our  public  policy  with  respect  to  accumulations 
and  the  suspension  of  the  absolute  ownership,  simply 
because  the  law  of  that  state  differs  in  some  respects 
from  ours."  And  again:  "When  an  instrument  af- 
fecting the  title  to  personal  property,  valid  in  its  origin, 
is  sought  to  be  set  aside  on  the  ground  that  it  is  in  some 
way  contrary  to  our  laws,  a  clear  case  must  be  estab- 
lished." So  therefore,  the  case  cited  is  a  sound  applica- 
tion of  the  general  rule  that  the  validity  of  a  will  of 
personalty  is  governed  by  the  law  of  the  domicile.  It 
goes  further.  It  holds  that  the  domiciliary  law  governs 
even  though  the  personal  property  is  located  in  a  dif- 
ferent state.  It  goes  further  still.  It  decides  that  the 
domiciliary  law  governs  even  though  it  makes  a  dis- 
position of  the  property  which  if  made  under  the  laws  of 
the  state  where  it  is  located,  would  be  absolutely  void. 

An  interesting  case  in  which  real  property,  on  the 
other  hand,  was  involved  is  Feet  v.  Peet,  229  111.  341,  82 
N.  E.  376.  The  facts  in  brief,  were  that  the  testator 
was  domiciled  in  New  York,  while  the  real  property  was 
located  in  Illinois.  A,  a  child  of  the  testator,  brought 
action  in  Illinois  to  recover  an  intestate  share  of  the 
property,  alleging  that  the  will  had  been  revoked  by 
his  birth  after  it  had  been  executed,  since  he  was  not 
mentioned  or  provided  for  in  it,  as  prescribed  by  the 
New  York  laws.  The  Court,  however,  dismissed  the 
proceedings.  It  held  that,  whether  the  child  had  been 
mentioned  or  provided  for  in  the  will  presented  a  ques- 
tion of  construction;  that,  being  a  will  of  real  property, 
its  construction  is  to  be  governed  by  the  law  of  the 
location;  that,  under  the  construction  of  the  will  as  it 
was  interpreted  by  Illinois  laws,  the  child  had  been 
actually  mentioned  and  provided  for,  in  the  light  of  parol 
evidence  introduced  at  the  trial ;  and  therefore,  there  was 
no  revocation  under  the  Illinois  Statute,  which  was 
similar  to,  but  in  that  respect  different  from,  the  New 


WILLS  97 

York  Statute.  The  decision  cannot  be  questioned.  It 
establishes  the  general  principle  that  the  construction 
of  a  will  of  real  property  is  governed  by  the  law  of  the 
state  where  it  is  located.  In  this  case  the  construction 
of  the  will  was  the  vital  question  in  the  case.  Interpret- 
ing it  in  the  light  of  domiciliary  New  York  law,  the 
Oourt  would  have  held  that  it  had  been  revoked  by  the 
birth  of  the  child,  because  not  mentioned  or  provided  for 
in  the  will.  On  the  other  hand,  construing  it  in  the  light 
of  the  local  Illinois  law,  the  Court  held  there  was  no 
revocation  under  its  Statute,  because  parol  evidence 
which  it  allowed,  but  which  the  New  York  Statute  ex- 
cluded, showed  that  the  child  had  been  mentioned  and 
provided  for  in  another  way,  and  therefore  there  was  no 
revocation.  Without  further  discussion  of  authority, 
it  is  clear  that  in  testamentary  law,  there  is  a  funda- 
mental distinction  between  realty  and  personalty. 
Hence,  while  questions  relating  to  realty  are  governed 
by  the  law  of  the  location,  questions  pertaining  to  per- 
sonalty are  governed  by  the  law  of  the  domicile. 

Sec.  35.  And  yet,  in  spite  of  the  foregoing  distinction 
in  reference  to  real  and  personal  property,  peculiar 
cases  arise  in  which  the  application  of  one  or  the  other 
of  these  two  general  rules  is  very  difficult.  For  example, 
there  is  the  subject  of  testamentary  election.  In  our 
study  of  Equity,  we  learned  that  the  principle  of  elec- 
tion in  Wills  means  that  the  will  gives  a  party  a  choice 
between  two  things,  the  provisions  under  the  will  or  his 
intestate  share  under  the  law.  The  will  provides  that 
he  is  to  take  one  or  the  other.  If  he  takes  one  he  can 
therefore  not  take  the  other,  because  he  is  required  to 
elect,  by  choosing  between  them.  The  will  is  an  en- 
tirety. He  either  takes  under  it  or  he  does  not.  If  he 
takes  under  it  he  must  accept  the  burden  with  the  benefit. 
He  is  required  to  elect.  Taking  the  provision  under 
the  will,  he  repudiates  the  intestate  share  under  the  law; 
he  has  elected  to  accept  the  one  and  elected  to  reject  the 
other;  and  having  done  so,  he  is  estopped  to  deny  that 


98  CONFLICT  OF  LAWS 

he  has  accepted  the  one  and  rejected  the  other.  So  that 
an  election  once  made  is  final  and  binding,  and  gives  him 
title  to  the  property  chosen;  but  denies  him  title  to  the 
property  rejected. 

But  it  is  superfluous  for  us  here  to  discuss  the  prin- 
ciple of  election  in  its  general  aspects.  We  are  inter- 
ested simply  in  the  CONFLICT  OF  LAWS  and  how  it 
Operates  where  a  case  of  election  is  presented.  And  we 
will  say  here  that  the  CONFLICT  OF  LAWS  operates 
very  anomalously  where  there  is  a  case  of  election.  That 
is,  to  a  certain  extent,  it  ignores  the  general  distinction 
between  real  and  personal  estate.  It  is  a  law  unto  it- 
self in  this  subject.  For  example,  the  principle  of  elec- 
tion was  involved  in  Martin  v.  Battey,  87  Kans.  582,  125 
Pac.  88.  The  facts  in  substance  were  that  A,  the  tes- 
tatrix, domiciled  in  Illinois,  died  in  that  state  leaving 
real  property  located  both  in  Illinois  and  Kansas.  The 
will  gave  the  husband  a  life  estate  in  all  the  property 
and  the  remainder  in  fee  to  the  heirs,  the  original  will 
being  probated  in  Illinois,  and  the  copy  in  Kansas  under 
a  special  law  in  force  there.  After  the  death  of  the 
testatrix,  the  husband  went  into  possession  of  the  prop- 
erty in  Illinois  under  the  will;  thereby  electing  to  ac- 
cept it  and  consequently  deciding  to  reject  his  intestate 
share  in  that  state,  since  in  his  estimation,  the  will  was 
more  favorable  to  him  than  the  law.  But,  in  Kansas 
where  the  other  piece  of  real  property  was  located,  the 
intestate  share  was  more  preferable  than  the  share 
under  the  will.  Consequently  the  question  in  the  case 
was,  having  elected  under  the  will  in  Illinois  can  he  elect 
against  the  will  in  Kansas?  Or  in  other  words,  is  an 
election  made  under  the  domiciliary  law  conclusive  in 
all  other  states  ?  Or  in  still  a  different  form,  which  law 
governs  an  election,  the  law  of  the  domicile  or  the  law 
of  the  location?  That  was  the  only  question  in  the  case. 
The  Court  held  that  in  the  CONFLICT  OF  LAWS,  the 
right  of  election  is  governed  by  the  law  of  the  domicile. 
It  is  not  governed  by  the  law  of  the  location. 

An  election  validly  made  in  the  state  where  the  tes- 


WILLS  99 

tator  was  domiciled,  is  conclusive  against  the  beneficiary 
in  all  states,  regardless  of  whether  it  pertains  to  real 
or  personal  estate,  or  both.  Certainly  that  is  a  special 
rule  in  the  CONFLICT  OF  LAWS.'  But  its  basis  is 
found  in  the  principles  of  Equity.  A  will  is  an  entirety. 
It  is  not  legally  divisible.  A  beneficiary  cannot  divide 
it  into  parts,  so  as  to  accept  it  in  one  state  and  repudiate 
it  in  another.  Certainly  the  technical  presence  of  real 
property  cannot  alter  the  case  as  to  him.  There  is  the 
all  powerful  rule  of  estoppel,  that  in  the  face  of  all  legal 
principles,  insists  that  if  a  party  accepts  a  will  in  one 
state  he  has  accepted  it  in  all  states,  because  it  is  not 
capable  of  severance  in  order  that  it  be  given  a  different 
operation  in  those  states,  and  in  that  way  an  endless 
confusion  arise  and  the  intention  of  the  testator  be  de- 
feated. So  it  is  therefore,  that  in  respect  of  election, 
a  subject  upon  which  this  very  case  shows  there  is  one 
rule  of  certainty  that  rises  above  the  technicalities  of 
the  CONFLICT  OF  LAWS,  it  must  be  made  under  the 
domiciliary  law.  If  made  there,  it  is  an  election  in  all 
states,  regardless  of  the  general  dispersion  of  the  real 
property  among  them.  The  unity  of  the  will,  the  cer- 
tainty of  its  operation  on  all  property  and  in  favor  of 
all  persons;  and  the  equity  of  compelling  the  party  to 
abide  by  the  will  as  he  has  elected  to  do,  are  all  argu- 
ments of  convenience  and  expediency  and  policy,  that 
ought  to  prevail  against  the  technical  doctrine  that  the 
laws  of  the  location  should  govern  questions  in  reference 
to  wills  of  realty. 


CRIMES 
CHAPTEE  XI 

Rule:  A  CRIMINAL  PROSECUTION  MUST  BE  BROUGHT  IN 
THE  STATE  WHERE  THE  CRIME  WAS  COMMITTED.l 

Rule:  A  CRIME  IS  COMMITTED  IN  THE  STATE  WHERE  THE 
LAST  ESSENTIAL  ACT  IS  DONE.2 

Rule:  CONSPIRACY  IS  COMMITTED  IN  THE  STATE  WHERE 
THE  CRIMINAL  AGREEMENT  IS  COMPLETED.3 

Rule:  HOMICIDE  IS  COMMITTED  IN  THE  STATE  WHERE  THE 
FATAL  INJURY  WAS  RECEIVED.4 

Rule:  LARCENY  IS  COMMITTED  IN  EACH  OF  THE  STATES 
FROM  THROUGH,  OR  INTO,  WHICH  THE  STOLEN  PROPERTY  IS 
TAKEN.5 

Sec.  37.    Our  discussion  so  far  has  developed  the  prin- 
ciples of  the  CONFLICT  OF  LAWS  in  relation  to  civil 


1— State  vs.  Chapin,  17  Ark. 
561,  65  Am.  D.  452;  STATE  VS. 
CUTSHALL,  110  N.  C.  538,  15 
S.  E.  261;  -See:  State  vs.  Lowe, 
21  W.  Va.  783,  45  Am.  R.  570. 

2— PEOPLE  VS.  ADAMS,  S 
DENIO  190  (N.  Y.),  45  AM.  D. 
468;  State  vs.  Chapin,  17  Ark. 
561,  65  Am.  D.  452;  SIMPSON 
VS.  STATE,  92  GA.  41,  17  S.  E. 
984;  STATE  VS.  GRUBER,  116 
MINN.  221,  133  N.  W.  571:  See: 
Connor  vs.  State,  29  Fla.  455,  10 
So.  891;  State  vs.  Hudson,  13 
Mont.  112,  32  Pac.  413. 

3— EX  PARTE  ROGERS,  10 
TEX.  CR.  APP.  655,  38  AM.  R. 
654;  See:  STATE  VS.  CHAPIN, 
17  ARK.  561,  65  AM.  D.  452. 

4— GREEN  VS.  STATE,  66 
ALA  40,  41  AM.  R.  744;  United 
States  vs.  Guiteau,  1  Mackey  498 
(D.  C),  47  Am.  R.  247;  State  vs. 
Kelly,  76  Me.  331,  49  Am.  R.  620; 


STATE  VS.  HALL,  114  N.  C.  909, 
19  S.  E.  602;  See:  People  vs.  Ty- 
ler, 7  Mich.  161,  74  Am.  D.  703; 
Commonwealth  vs.  Macloon,  101 
Mass.  1,  100  Am.  D.  89;  EX 
PARTE  McNEELY,  36  W.  VA.  84, 
14  S.  E.  436;  Commonwealth  vs. 
Jones,  118  Ky.  889,  82  S.  W.  643. 
5 — Hemmaker  vs.  State,  12  Mo. 
453,  51  Am.  D.  172;  STATE  VS. 
KIEF,  12  MONT.  92,  29  PAC.  654; 
Contra:  Lee  vs.  State,  64  Ga.  203, 
37  Am.  R.  67;  STROUTHER  VS. 
COMMONWEALTH,  92  VA.  789, 
22  S.  E.  852;  Brown  vs.  United 
States,  35  App.  Cas.  548  (D.  C), 
Ann.  Cas.  (1912)  A.  388.  See 
State  vs.  Underwood,  49  Me.  181 
77  Am.  D.  254;  State  vs.  Cum 
mings,  33  Conn.  260,  89  Am.  D 
208;  People  vs.  Brock,  149  Mich 
464,  112  N.  W.  1116;  Ex  parte  Sul 
livan,  84  Neb.  493,  121  N.  W.  456 


100 


CONFLICT  OP  LAWS  101 

actions.  We  are  now  prepared  to  discuss  Crimes;  and 
to  show  by  principle  and  concrete  decision,  the  law  as 
it  effects  Criminal  Actions.  And  here  the  author,  by 
personal  intrusion,  again  suggests,  that  in  spite  of  the 
technicality  and  the  difficulty  and  the  uncertainty  of  this 
branch  of  our  subject,  still  it  is  reducible  to  certain 
fundamental  principles  that  can  be  directly  stated.  As 
in  the  history  of  society,  so  in  the  history  of  the  Law, 
crime  has  played  a  leading  part.  In  fact,  the  very  con- 
ception of  a  crime  is  that  it  is  an  act  that  injures,  not 
the  right  of  the  individual,  but  the  peace  and  the  security 
and  the  dignity  of  the  State,  which  is  simply  society 
in  its  organized  form.  So  it  is  then,  that  the  essence 
of  crime  is  that  it  is  an  act  in  violation  of  the  laws  of 
the  State  where  it  was  committed.  And  being  in  viola- 
tion of  those  laws,  it's  commission  inflicts  a  direct, 
permanent  injury  on  that  State.  Nor  is  that  all.  Being 
a  violation  of  the  law  of  a  State,  it  injures  the  sover- 
eignty of  that  State,  and  acts  detrimentally  to  its  people. 
Beyond  that,  however,  there  is  no  harm.  It  is  not  a  vio- 
lation of  the  law  of  another  State;  nor  is  it  injurious 
to  the  sovereignty  of  another  State,  nor  are  the  people 
of  another  state  affected  by  it,  only  in  a  very  indirect 
way.  Consequently  a  crime  being  local,  is  injurious 
locally  in  that  State  where  it  was  committed;  and  there- 
fore, our  first  general  principle  is,  that  the  criminal 
prosecution  must  be  brought  in  that  State  where  the 
Crime  was  committed.  This  is  in  truth  more  than  a 
general  principle.  Since  a  crime  is  local  and  therefore 
must  be  redressed  by  local  action,  it  is  not  subject  to  the 
doctrine  of  Comity;  so  that  if  a  crime  is  not  redressed 
locally  in  the  State  of  its  commission,  it  can  not  be 
prosecuted  in  any  other  State,  because  of  its  territorial 
nature. 

Let  us  refer  briefly  to  a  leading  case,  State  v.  Cut  shall, 
110  N.  C.  538,  15  S-E  261.  In  that  case,  the  defendant 
was  indicted  for  bigamy  in  North  Carolina;  was  a  mar- 
ried man;  >and  left  the  State  going  to  South  Carolina 
where  he  contracted  a  remarriage.    The  North  Carolina 


102  CONFLICT  OF  LAWS 

Court  decided  he  was  not  guilty  of  bigamy  under  it's 
laws.  It  said  "The  State  of  South  Carolina  was  the 
sovereign  whose  authority  was  disregarded  when  the 
bigamous  marriage  was  celebrated.  If  the  defendant 
married  a  second  time  in  South  Carolina,  the  act  has 
no  tendency  at  the  time  to  affect  society  here,  nor  can 
that  unlawful  conduct  be  punished  in  this  State."  The 
case  is  a  leading  authority.  It  gives  a  thorough  discus- 
sion of  the  general  principle  that  a  crime  is  an  act  that 
is  local;  that  jurisdiction  to  prosecute  it  is  in  that  State 
within  whose  territory  the  criminal  act  was  committed. 
It  is  believed  that  the  decision  is  sound.  The  act  of 
bigamy  was  committed  in  South  Carolina,  and  being  com- 
mitted there,  was  a  crime  against  its  laws  only,  and 
consequently  North  Carolina  acquired  no  jurisdiction 
to  prosecute  the  offender. 

Sec.  38.  The  preceding  discussion,  however,  raises 
this  question,  where  is  the  crime  committed?  Certainly 
since  a  crime  is  local  and  must  be  prosecuted  in  the  State 
where  it  was  committed,  there  is  difficulty  in  some  cases, 
in  determining  its  locality.  A  crime  in  some  cases  is 
a  complex  transaction.  It  can  extend  into  several  states. 
That  is,  it  can  be  committed  partly  in  one  State  and 
partly  in  another.  And  how  are  we  to  decide  the  locality 
of  the  crime?  The  general  principle  in  this  connection 
is,  that  crime  is  committed  in  that  State  where  the  last 
essential  act  is  done,  because  it  is  not  committed  until 
it  is  completed.  So  that,  if  it  is  committed  partly  in  one 
State  and  partly  in  another,  the  locality  of  the  offense 
is  not  where  it  is  begun,  but  where  it  is  completed, 
since  completion  is  commission.  So  therefore,  if  a  crime 
consists  of  a  succession  of  acts,  or  a  continuous  act,  it 
is  committed  in  that  State  where  the  final,  essential, 
criminal  act  was  performed. 

This  general  principle  was  applied  in  People  v.  Adams, 
3  Denio  190  (N.  Y.)  45  Am.  D.  468.  In  that  case,  the 
defendant  was  indicted  in  New  York  for  the  crime  of 
obtaining  property  by  false  pretenses.    The  facts  showed 


CRIMES  103 

that  the  defendant  had  sent  an  innocent  agent  into  New 
York  with  instructions  to  make  certain  representations 
to  third  parties  there,  and  obtain  property  from  them 
on  the  faith  of  them.  These  statements  were  really 
false  and  fraudulent,  but  the  agent  was  ignorant  of  it, 
and  after  receiving  the  money,  delivered  it  to  the  de- 
fendant, who  meanwhile  had  come  into  New  York.  The 
Court  held  that  he  was  guilty.  The  crime  was  obtaining 
property  by  false  pretenses.  It  was  begun  in  Ohio  by 
the  concoction  of  the  plan,  but  it  was  completed  in  New 
York  where  the  property  was  obtained.  And  being  com- 
plete in  New  York,  it  was  committed  there.  Hence,  New 
York  had  jurisdiction  of  the  offense. 

Now,  in  view  of  the  preceding  explanations,  there 
should  be  no  difficulty  with  the  subject.  Of  course,  the 
general  principle  is  clear,  that  a  crime  must  be  redressed 
where  it  was  committed;  and  that  it  is  committed  where 
it  was  finally  completed.  But  there  are  three  crimes  that 
are  governed  by  special  rules.  That  is,  they  are  not 
exceptions  to  the  general  principle,  but  their  very 
peculiar  nature  makes  it  necessary  to  discuss  them 
separately. 

Sec.  39.  To  begin  with,  one  of  these  very  peculiar 
crimes  is  conspiracy.  Now,  as  we  have  just  stated, 
it  is  not  an  exception  to  the  general  rule.  Hence,  con- 
spiracy is  committed  in  that  State  where  it  is  completed. 
It  is  completed  not  where  the  criminal  agreement  had 
its  inception,  but  in  that  State  where  it  had  its  con- 
summation. That  is  simple.  Conspiracy  is  in  the  law 
of  crimes,  an  agreement  to  commit  come  ulterior  crime. 
It  is  not  necessary  however  that  the  ulterior  crime  be 
committed.  The  very  agreement  between  two  persons 
to  commit  it  completes  and  consummates  and  commits 
the  conspiracy.  Therefore,  it  is  a  crime,  not  where  the 
criminal  proposition  originated,  but  where  it  was  ac- 
cepted ;  even  though  the  intended  ulterior  crime  was  never 
committed. 

A  decision  on  the  question  is  Ex  Parte  Rogers,  1© 


104  CONFLICT  OF  LAWS 

Tex.  Cr.  App.  655,  38  Am.  R.  654.  In  that  case,  the 
defendant  was  convicted  of  conspiracy  in  Texas,  and 
brought  habeas  corpus  proceedings  for  his  discharge 
from  custody,  on  the  ground  that  the  Court  had  no  juris- 
diction. It  appeared  however,  that  the  defendant  and 
an  accomplice  agreed  in  Texas  to  forge  the  title  to  prop- 
erty in  that  state,  and  in  fact  actually  committed  the 
forgery  there,  although  the  whole  plan  originated  with 
the  confederate  in  Illinois.  The  Court  dismissed  the 
writ  and  held  him  guilty.  Conspiracy  consists  in  the 
agreement  to  commit  some  secondary  offense;  and  re- 
gardless of  the  locality  of  the  intended  offense,  and  in 
reality,  irrespective  of  whether  it  was  actually  com- 
mitted; conspiracy  being  a  separate  preliminary  crime, 
was  complete  not  in  Illinois,  where  the  scheme  had  its 
origin,  but  in  Texas  where  it  was  finally  agreed  to,  and 
in  fact  was  acted  upon.  So  it  can  be  said,  that  the 
general  rule  is  that  conspiracy  is  committed  where  the 
criminal  agreement  is  entered  into. 

Sec.  40.  Another  very  peculiar  crime  is  homicide.  It 
is  peculiar  in  that  it  too,  like  conspiracy,  consists  of  two 
acts,  instead  of  one.  That  is,  homicide  is  criminally  kill- 
ing a  person  by  the  infliction  of  violence.  It  therefore  in- 
cludes two  essential  acts — the  fatal  injury  and  the  death. 
Of  course,  if  the  injury  and  the  death  occur  in  the  one 
state,  there  is  no  CONFLICT  OF  LAWS.  But  suppose 
the  injury  is  inflicted  in  one  state  and  the  death  occurs  in 
another  state?  This  was  the  identical  state  of  facts  in 
Green  v.  State,  66  Ala.  40,  41  Am.  R.  744.  There,  the 
defendant  was  convicted  of  murder  by  the  Alabama 
Court.  The  case  showed  that  the  injury  was  inflicted 
in  Alabama,  but  that  the  death  occurred  in  Georgia. 
The  Supreme  Court  of  Alabama  affirmed  the  judgment 
of  conviction  by  the  trial  Court.  With  reference  to  the 
question  as  to  whether  the  locality  of  the  homicide  was 
Alabama  or  Georgia,  the  Court  said:  "Our  view  is  that 
the  crime  of  murder  consists  in  the  infliction  of  a  fatal 
wound,  coupled  with  the  requisite  contemporaneous  in- 


CRIMES  105 

tent  or  design,  which  legally  renders  it  felonious.  The 
subsequent  death  of  the  injured  party  is  a  result  or 
sequence,  rather  than  a  constituent  elemental  part  of 
the  crime."  Hence,  in  view  of  this  decision,  it  is  no 
doubt  true  that  homicide  requires  injury  and  death  as 
its  elements;  but  the  injury  is  the  completed  criminal 
act,  while  the  death  is  its  natural  involuntary  conse- 
quence. In  the  light  of  that  peculiarity,  the  last  essential 
act  in  homicide  is  the  injury,  and  therefore,  homicide  is 
complete  in  the  state  not  where  the  death  ensues,  but 
where  the  injury  was  wilfully  and  voluntarily  inflicted 
by  the  defendant.  So  it  is  then,  that  homicide  is  in 
reality,  no  exception  to  the  general  rule  that  a  crime  is 
committed  in  that  state  where  the  last  essential  act  was 
done. 

Sec.  41.  But  of  all  crimes  in  the  CONFLICT  OF 
LAWS  larceny  is  the  most  peculiar.  The  gravamen  of 
this  offense  is  the  criminal  removal  of  property.  If 
there  is  an  intention  to  steal,  all  that  is  necessary  to  make 
it  larceny  is  the  removal  of  the  property.  So  therefore, 
if  property  is  criminally  removed  within  a  state,  it  is  al- 
ways larceny.  And  if  it  is  criminally  removed  out  of 
a  state,  it  is  always  larceny.  And  if  it  is  criminally 
removed  into  el  state,  it  is  always  larceny.  In  all  those 
three  different  forms  of  removal,  a  crime  has  been  com- 
mitted. In  fact,  where  the  removal  is  not  wholly  within 
one  state  but  begins  in  one  state  and  ends  in  another, 
there  are  really  two  distinct  larcenies.  That  is  clear. 
Larceny  is  a  crime  against  a  state  as  a  whole.  Hence, 
if  the  removal  is  within  the  limits  of  only  one  state, 
there  is  only  one  state  involved,  and  therefore  only  one 
larceny.  But  if  the  removal  is  between  two  states,  that 
is,  it  is  exported  from  one  and  imported  into  another, 
there  are  two  states  involved,  and  therefore  two  lar- 
cenies. That  is,  in  such  a  case  it  is  an  act  of  larceny 
to  carry  it  out  of  one  state,  and  a  separate  original  act 
of  larceny  to  carry  it  into  another. 

At  this  juncture,  it  will  be  objected  that  an  act  of 


106  CONFLICT  OF  LAWS 

importation  or  an  act  of  exportation,  from  one  state  to 
another,  is  not  a  state  crime ;  that  it  is  a  Federal  Crime, 
involving  as  it  does  interstate  commerce.  That  is  true 
to  a  certain  extent.  There  is  interstate  commerce  in 
the  case.  But  still,  these  acts  are  state  offenses,  be- 
cause the  states  have  by  statutes  made  them  state  of- 
fenses ;  and  because  the  states  can  constitutionally  make 
acts  of  interstate  commerce  criminal,  until  the  United 
States  by  express  inconsistent  legislation,  has  made  them 
Federal  Crimes,  and  thus  nullified  state  laws.  This  has 
not  been  done  in  the  law  of  larceny,  excepting  that  the 
National  Motor  Vehicle  Theft  Act  (Act  of  Oct.  29,  1919; 
Ch.  89,  41  Stat.  L.  324)  makes  it  a  Federal  Crime  to 
import  into  or  export  from,  one  state  to  another,  stolen 
automobiles.  Hence,  as  to  that  single  class  of  property, 
while  it  is  a  State  Crime  to  criminally  remove  it  within 
a  state,  it  is  no  longer  a  state  crime  to  import  or  export 
stolen  motor  vehicles  from  or  into,  any  state  in  the 
Union.  But  the  conflict  of  federal  and  state  jurisdiction 
is  strictly  a  constitutional  question.  We  are,  in  the 
CONFLICT  OF  LAWS,  dealing  entirely  with  the  rel- 
ative powers  of  one  state  as  against  all  other  states. 

Another  instructive  case  in  which  this  branch  of  the 
subject  was  discussed  is  State  v.  Kief,  12  Mon.  92,  29 
Pac.  654.  In  that  case,  the  defendant  was  indicted  for 
larceny.  The  facts  showed  he  stole  certain  property  in 
Canada  and  brought  it  into  Montana.  The  Court  held 
he  was  guilty.  The  act  of  importing  stolen  property 
from  another  jurisdiction  constituted  the  crime.  Now  a 
few  words  with  reference  to  this  decision.  The  defendant 
was  convicted  under  a  statute  that  provided:  "Every 
person  who  shall  felonously  steal  the  property  of  an- 
other in  any  other  state,  territory  or  country,  and  shall 
bring  it  into  Montana,  can  be  convicted  as  if  such  larceny 
had  been  committed  within  this  territory."  It  is  clear 
from  the  statute  that  the  act  of  importation  was  the 
larceny,  and  certainly  a  state  can  constitutionally  enact 
that  importing  stolen  property  into  its  limits  is  a  crime. 
The  importation  of  it  is  certainly  an  act  done  in  the 


CRIMES  107 

state;  and  hence  being  a  local  act,  is  subject  to  the  laws 
of  that  state,  and  can  consequently  be  made  criminal. 
The  policy  behind  this  statute  is  very  commendable.  Its 
purpose  is  to  discourage  traffic  in  stolen  property;  to 
exclude  it  from  the  state;  and  by  doing  so,  confine  it  to 
the  state  whence  it  was  taken,  so  that  its  lawful  owners 
can  readily  and  promptly  recover  it.  No  criminal  stat- 
ute could  possibly  be  predicated  on  sounder  principles 
than  is  the  class  of  statutes  under  discussion. 

So  therefore  in  conclusion,  larceny  is  in  reality  a  con- 
tinuous offense.  In  fact,  it  is  a  succession  of  separate 
offenses,  being  complete  and  committed  in  every  sep- 
arate state  from,  through  or  into  which  the  stolen  prop- 
erty was  taken;  because  in  each  it  is  a  consummated 
offense  by  the  single  act  of  removal,  and  so,  it  not  only 
strengthens  but  confirms  our  general  proposition,  that 
a  crime  is  a  crime  wherever  the  essential  act  is  done. 


PENAL  ACTIONS 
CHAPTER  XH 

Rule:  A  PENALTY  IS  A  PUNITIVE  LIABILITY  IMPOSED  ON 
A  PERSON  BY  LAW  FOR  DOING,  OR  FAILING  TO  DO,  A  SPECI- 
FIED ACT.l 

Rule:  A  PENAL  ACTION  MUST  BE  BROUGHT  IN  THE  STATE 
WHOSE  LAW  IMPOSES  IT.2 

Sec.  42.  Tn  this,  our  concluding  chapter,  we  shall  dis- 
cuss the  CONFLICT  OF  LAWS  in  reference  to  Penal 
Actions.  This  branch  of  our  subject  is  treated  last,  be- 
cause of  its  difficulty  and  because  of  the  very  peculiar 
character  of  penal  actions,  which  strictly  speaking,  are 
partly  tort  and  partly  criminal  proceedings,  and  yet 
are  not  distinctly  one  or  the  other.  They  are  sui 
generis.  They  are  therefore  in  the  CONFLICT  OF 
LAWS  subject  to  special  rules. 

The  real  difficulty  in  penal  actions  however,  it  is  be- 
lieved, is  in  recognizing  them,  and  not  in  applying  the 
governing  law  after  they  are  recognized.  Because,  once 
an  action  is  held  to  be  penal,  it  is  local;  it  must  be  re- 
dressed in  the  state  whose  laws  impose  it;  and  it  can- 
not be  sued  on  in  other  states.  In  so  far  as  a  penal  ac- 
tion is  local  and  must  be  redressed  in  the  state  whose 
laws  create  it,  it  is  criminal,  but  in  so  far  as  the  lia- 
bility it  creates  is  pecuniary,  it  is  a  civil  proceeding. 

1— O'Reilly  vs.  R.  R.  Co.,  16  R.  89     Ind.     526,    46    Am.    R.     175; 

I.    388,    17    Atl.    906;    Huntington  O'Reilly  vs.  R.  R.  Co.,  16  R.  I.  388, 

vs.  Attril,  146  U.  S.  657,  13  S.  Ct.  17  Atl.  906;   Raisor  vs.  R.  R.  Co., 

R.   224;    RAISOR  VS.  R.  R.   CO.,  215  111.  47,  74  N.  E.  69;  See:  Stack 

215   ILL.    47,    74   N.   E.   69;    Gul-  vs.  Lum.  &  Ced.  Co.,  151  Mich.  21, 

ledge   Bros.   Lumb.    Co.   vs.    Land  114  N.  W.  876;  GULLEDGE  BROS. 

Co.,  122  Minn.  266,  142  N.  W.  305.  LUMBER  CO.  VS.  LAND  CO.,  122 

2— Carnahan  vs.  W.  U.  TeL  Co.,  MINN.  266,  142  N.  W.  305. 

108 


PENAL  ACTIONS  109 

Now  to  begin  with,  when  is  an  action  penal?  This  is 
the  necessary  preliminary  question.  It  has  certain 
qualities.  A  penal  action  is  always  a  statutory  liability 
to  pay  money.  And  that  liability  is  imposed  for  either 
doing,  or  failing  to  do,  an  act  specified  in  the  statute. 
And  lastly,  that  liability  is  arbitrary.  This  last  quality 
is  the  essential  quality  that  brands  an  action  as  penal. 
In  the  first  two  qualities,  as  a  matter  of  fact,  a  penalty 
resembles  a  tort.  And  why?  As  in  torts,  the  liability 
is  statutory.  As  in  torts,  that  liability  is  imposed  for 
doing  or  failing  to  do  a  certain  act.  But,  here  is  the 
distinction :  the  liability  in  a  penalty  is  a  certain  definite 
arbitrary  sum  fixed  by  the  statute.  On  the  other  hand, 
in  a  tort,  the  sum  recoverable  is  not  fixed  at  all  by  the 
statute,  but  must  be  determined  from  the  evidence  by 
a  court  or  jury.  Hence,  since  in  a  penalty  the  statute 
both  establishes  a  liability  and  fixes  the  measure  of  it, 
it  is  akin  to  a  criminal  fine,  and  hence  is  called  a  penal 
action,  since  it  has  the  punitive  element  in  it.  There  are 
other  tests  that  are  occasionally  proposed  to  determine 
whether  an  action  is  penal,  but  it  is  believed  that  the  test 
of  arbitrariness  of  the  sum  recoverable  is  infallible. 

Now  of  course  there  are  various  forms  of  penal  action. 
That  is,  some  impose  an  amount  and  provide  that  no 
more  is  recoverable.  While  others  impose  an  amount 
and  provide  that  no  less  is  recoverable.  But  in  either 
case  such  statutes  are  purely  penal.  They  savor  of  crim- 
inal laws  which  aim  to  penalize  the  guilty,  rather  than 
merely  compensate  the  injured  party.  And  yet,  in  spite 
of  the  criminal  aspect  of  a  penal  action,  it  has,  as  has 
been  said,  a  civil  aspect.  That  is,  it  incidentally  assists 
the  injured  party  in  recovering  the  specified  sum.  So 
therefore,  our  conclusion  is  that  a  penal  action  is  an 
arbitrary  liability  imposed  by  statute  for  doing  or  fail- 
ing to  do  a  specified  act.  If  the  liability  imposed  by  a 
statute  for  doing  or  failing  to  do  a  specified  act  is  not 
directly  fixed  by  the  statute,  but  must  be  determined 
by  a  court  or  jury  from  the  evidence  on  the  trial,  the 
statute  is  not  penal.    In  such  case  it  is  an  ordinary  tort. 


110  CONFLICT  OF  LAWS 

Now,  for  example,  take  a  death  action.  The  liability  to 
pay  for  a  death  caused  is  imposed  by  statute.  And  that 
liability  is  imposed  for  doing  that  specified  act.  But 
does  the  statute  go  further!  Does  it  fix  and  measure 
and  prescribe  an  arbitrary  sum  recoverable?  No  it  does 
not.  The  court  or  the  jury  fixes  the  sum  recoverable 
after  considering  the  facts,  and  since  therefore  a  death 
action  is  essentially  compensatory,  it  is  a  tort  proceeding. 
And  yet,  that  very  death  action  could  be  readily  made 
penal.  For  example,  in  Raisor  v.  R.  R.  Co.,  215  111.  475, 
74  N.  E.  69,  a  Missouri  statute  imposed  a  liability  on 
any  railroad  for  causing  the  death  of  a  party,  and  fixed 
the  arbitrary  sum  of  $5,000  to  be  recoverable  in  all  cases 
where  a  death  was  produced  An  action  was  brought  in 
Illinois  to  recover  under  the  Missouri  Statute  the  $5,000 
liability  for  a  death  caused  there.  But  the  Illinois  Court 
held  the  action  could  not  be  brought.  It  held  that  the 
action  was  penal;  that  it  imposed  a  liability;  that  the 
liability  was  imposed  for  doing  a  specified  act ;  but  since 
the  amount  was  arbitrarily  fixed  by  the  statute,  it  was 
penal,  and  could  be  redressed  only  in  Missouri. 

Sec.  43.  In  the  light  of  the  preceding  explanation,  it 
is  not  necessary  to  again  state  that  the  test  of  a  penalty 
is  that  the  sum  recoverable  is  always  fixed  directly  and 
definitely  by  the  statute  that  imposes  a  liability.  Its 
purpose,  in  other  words,  is  penal.  That  is,  it  requires 
the  defendant  to  pay  a  certain  arbitrary  sum  at  all 
events,  regardless  of  the  actual  loss  sustained  by  the 
other  party.  Hence,  such  a  statute  partakes  of  a  crim- 
inal law  that  is  punitive,  and  not  of  a  civil  law  that  is 
compensatory,  since  its  punitive  purpose  predominates, 
and  its  compensatory  element  is  wholly  incidental.  So 
it  is  therefore,  that  since  a  penal  liability  is  essentially 
criminal,  and  only  in  a  secondary  way  civil,  it  is  in  the 
CONFLICT  OF  LAWS,  substantially  deemed  to  be  a 
criminal  proceeding.  Consequently  a  penal  action  being 
fundamentally  criminal,  is  local,  must  be  redressed  local- 
ly; and  therefore  cannot  be  enforced  in  any  other  state 


PENAL  ACTIONS  111 

under  the  principles  of  Comity.  That  is,  being  criminal, 
a  penal  action  must  be  brought  in  the  state  where  it 
accrued;  and  on  jurisdictional  grounds,  is  unenforcible 
in  other  states,  because  one  state  does  not,  and  cannot 
enforce,  the  criminal  or  penal  laws  of  another.  Such 
laws  and  actions  based  on  them  pertain  only  to  the  local 
sovereignty  of  the  state  whence  they  had  their  inception. 
So  therefore,  the  general  rule  is  that  a  penal  action  being 
inherently  a  criminal  action,  must  be  redressed  in  that 
state  whose  laws  create  it.  That  is,  no  other  state  has 
jurisdiction  to  enforce  it,  because  jurisdiction  in  crim- 
inal and  penal  actions  is  strictly  local  and  territorial, 
and  hence  exists  only  in  the  state  whose  laws  were 
violated. 

By  strange  coincidence,  that  principle — the  locality  of 
laws — brings  to  memory  the  first  introduction  to  our 
subject;  and  completes  here  the  discussion  of  the  CON- 
FLICT OF  LAWS.  We  have  discussed  the  subject; 
learned  its  principles;  and  analyzed  its  decisions.  And 
after  all,  the  CONFLICT  OF  LAWS  is  based  simply 
on  certain  fundamentals,  that  by  careful  selection,  man- 
ifests a  symmetry  and  a  consistency  and  a  unity  that 
has  no  parallel  in  any  other  subject  of  the  Law. 


TABLE  OF  CASES. 

[BEFERENCES  ABE  TO  THE  PAGES.] 

A 

Adams  vs.  Fellers,  67. 
Alabama  G.  S.  R.  Co.  vs.  Carroll,  5. 
American  Bible  Soc.  vs.  Healy,  94. 
American  F.  L.  &  W.  Co.  vs.  Jefferson,  57. 
Ames  Iron  Works  vs.  Warren,  67. 
Armstrong  vs.  Best,  23. 
Ash  vs.  R.  R.  Co.,  13. 
Austin  vs.  R.  R.  Co.,  5;  9. 

B 

Baltimore  &  Ohio  R.  R.  Co.  vs.  Chambers,  13. 

Baltimore  &  Ohio  R.  R.  Co.  vs.  Joy,  5. 

Baltimore  &  Ohio  S.  W.  R.  R.  Co.  vs.  Read,  6. 

Bank  of  Louisiana  vs.  Williams,  21;  23. 

Baum  vs.  Burcnall,  21;   22;  23. 

Beggs  vs.  Bartels,  67;  73. 

Bennet  vs.  Association,  57;  59. 

Besse  vs.  Pellochoux,  78. 

Bigelow  vs.  Burnham,  57. 

Blythe  vs.  Ayers,  88. 

Boyer  vs.  Knowlton  Co.,  67. 

Brandeis  vs.  Atkins,  22;  94. 

Brockman  vs.  Durkee,  78. 

Brown  vs.  Dalton,  21;  23. 

Brown  vs.  Finley,  88. 

Brown  vs.  Gates,  22;   23;  31. 

Brown  vs.  Hathaway,  47. 

Brown  vs.  United  States,  100. 

Brunswick  Term.  Co.  vs.  Bank,  5;  13;  22;  47;  55. 

Buckles  vs.  Ellers,  5;  8. 

Bulger  vs.  Roche,  47. 

Burchard  vs.  Dunbar,  47;  49. 

Burnley  vs.  Stevenson,  5. 

Burr  vs.  Beckler,  22;  23;  43;  46;  60. 

113 


114  TABLE  OF  CASES 


Campbell  vs.  Coon,  22;  23. 
Cannaday  vs.  R.  R.  Co.,  21;  23;  27. 

Carnahan  vs.  W.  U.  T.  Co.,  108. 

Castens  vs.  Murray,  94. 

Chem.  Nat.  Bank  vs.  Kellogg,  22;  23. 

Clarey  vs.  Ins.  Co.,  22;  23. 

Clark  vs.  Graham,  22;  33;  45. 

Clement  vs.  Willet,  5;  22. 

Cleveland  Mach.  Works  vs.  Lang,  67. 

Cochran  vs.  Ward,  21;  23;  47. 

Commonwealth  vs.  Jones,  100. 

Commonwealth  vs.  Lane,  77;  79;  80;  82;  83. 

Commonwealth  vs.  Macloon,  100. 

Conant  vs.  Irrigation  Co.,  5. 

Connor  vs.  State,  100. 

Cooley  vs.  Scarlett,  5. 

Corbett  vs.  Littlefleld,  67. 

Crawford  vs.  State,  77. 

Cross  vs.  Trust  Co.,  94;  95. 

D 

Davis  vs.  Morton,  47. 
Dayton  vs.  Adkisson,  88. 
Dennick  vs.  R.  R.  Co.,  13;  15. 
DePas  vs.  Mayo,  78;   86. 
Don  vs.  Lippmann,  47. 
Dougherty  vs.  Process  Co.,  13. 
Douglass-Menzies  Co.  vs.  Umphelby,  94. 
Downer  vs.  Chesebrough,  47;  50. 


B 


Earl  vs.  Godley,  77;  88. 
Eingartner  vs.  111.  Steel  Co.,  6. 
Emery  vs.  Burbank,  23;  47. 
Evans  vs.  Beaver,  21;  22;  23. 


P 


Farmers  &  Merchants  Bank  vs.  Sutherlin,  1;  67. 

Pergusson's  Will,  In  re,  94. 

First  Nat.  Bank  of  Waverly  vs.  Hall,  22;  23. 

Flagg  vs.  Baldwin,  23;  41;  42. 

Fowler  vs.  Fowler,  88. 

Freeman,  Appeal  of,  21. 

French  vs.  Hall,  67. 


TABLE  OF  CASES  115 


Garrigue  vs.  Keller,  22;  23. 

Gooch  vs.  Faucett,  23. 

Graham  vs.  Bank,  21;  23;  28. 

Green  vs.  State,  100;  102. 

Green  vs.  Van  Buskirk,  67;  70;  72. 

Greenhow  vs.  James,  77;  88. 

Gulledge  Bros.  Lumber  Co.  vs.  Land  Co.,  108. 


Halloran  vs.  B'r'g.  Co.,  47. 
Hartley  vs.  Hartley,  13. 
Hartness  vs.  Pharr,  13. 
Heaton  vs.  Eldredge,  47;  51;  52. 
Hemmaker  vs.  State,  100. 
Hendricks  vs.  Comstock,  47. 
Herrick  vs.  R.  R.  Co.,  5;  7. 
Hervey  vs.  Locomotive  Works,  67. 
Higgins  vs.  R.  R.  Co.,  13. 
Hill  vs.  Wilker,  23. 
Hilton  vs.  Guyot,  1. 
Hope  vs.  Brewer,  94. 
Hornthall  vs.  Burwell,  67. 
Huntington  vs.  Attrill,  108. 
Hyde  vs.  Hyde,  77. 


Irving  vs.  Ford,  88;  90. 

J 

Jones  vs.  Oil  &  Fish  Co.,  67;  74. 

K 

King  vs.  Sarria,  21;  22. 


Lando's  Estate,  In  re,  77;  78. 

Lanham  vs.  Lanham,  78. 

Lee  vs.  State,  100. 

Leonard  vs.  Navigation  Co.,  13, 

Lincoln  vs.  Perry,  94. 

Little  vs.  R.  R.  Co.,  5. 

Long  vs.  Hess,  78. 


116  TABLE  OF  CASES 

M 

Mack  vs.  Quarries  Co.,  22;  23;  47. 

Martin  vs.  Battey,  94;   98. 

Martin  vs.  Johnson,  57. 

Marvin  Safe  Co.  vs.  Norton,  67. 

Mayer  vs.  Roche,  22;   23. 

McCarthy  vs.  R.  R.  Co.,  13;  14. 

McNeeley,  Ex  parte,  100. 

Medway  vs.  Needham,  77. 

Midland  Valley  R.  R.  Co.  vs.  M'f'g.  Co.,  22. 

Miller  vs.  Wilson,  21;   23;  47. 

Millikenvs.  Pratt,  21;  22;  26;  43. 

Mount  vs.  Tuttle,  94. 

Nat.  Bank  of  Commerce  vs.  Jones,  67. 

N 

Nat.  Bank  of  Commerce  vs.  Morris,  67;  71;  72. 

Nelson  vs.  R.  R.  Co.,  13. 

Norman  vs.  Norman,  77. 

Northwestern  Mas.  Aid  Ass'n.  vs.  Jones,  22;  94. 


O'Reilly  vs.  R.  R.  Co.,  13;  108. 
^Shields  vs.  R.  R.  Co.,  5. 


Packwood,  Succession  of,  78. 

Pearsall  vs.  Dwight,  47;  54. 

Peet  vs.  Peet,  94;   96. 

Pennegar  vs.  State,  1;   3;  77. 

People  vs.  Adams,  100;  102. 

People  vs.  Brock,  100. 

People  vs.  Tyler,  100. 

Petit,  Succession  of,  88. 

Poison  vs.  Stewart,  21;   22;  23;  34;  36;  37;  45. 

Pritchard  vs.  Norton,  22;  23. 

R 

Raisor  vs.  R.  R.  Co.,  108;   110. 
Richardson  vs.  DeGiverville,  78;   84. 
Robinson  vs.  Queen,  21;   22;   23;  47. 
Roche  vs.  Washington,  77. 
Rogers,  Ex  parte,  100;  103. 


TABLE  OF  CASES  117 


Ross  vs.  Ross,  88;  91;  93. 
Ruhe  vs.  Buck,  47;   48. 


8 


Saint  L.  I.  M.  &  S.  R.  R.  Co.  vs.  McCormick,  13. 

Satterthwaite  vs.  Doughty,  21;  23;  47. 

Schick  vs.  Howe,  88. 

Schmidt  vs.  Perkins,  67. 

Scott  vs.  Perlee,  57;  61. 

Scudder  vs.  Bank,  22. 

Security  Co.  vs.  Eyer,  47. 

Shannon  vs.  Association,  57;  65. 

Simpson  vs.  State,  100. 

Smith  vs.  Kelly,  88. 

Snyder  vs.  Yates,  67. 

Stack  vs.  Lumb.  and  Ced.  Co.,  47;  108, 

State  vs.  Chapin,  100. 

State  vs.  Cummings,  100. 

State  vs.  Cutshall,  100;  101. 

State  vs.  Fenn,  77. 

State  vs.  Gruber,  100. 

State  vs.  Hall,  100. 

State  vs.  Hand,  77. 

State  vs.  Hudson,  100. 

State  vs.  Kelly,  100. 

State  vs.  Kief,  100;   106. 

State  vs.  Lowe,  100. 

State  vs.  Shattuck,  77. 

State  vs.  Tutty,  78. 

State  vs.  Underwood,  100. 

State  Bank  of  Eldorado  vs.  Maxson,  21;  22;  23;  47. 

Strouther  vs.  Commonwealth,  100. 

Stull's  Estate,  In  re,  78. 

Sullivan,  Ex  parte,  100. 


Third  Nat.  Bank  of  N.  Y.  vs.  Steele,  47, 
Thompson  vs.  Taylor,  21;  23;  39. 
Thornton  vs.  Dean,  57. 
Thuret  vs.  Jenkins,  67. 


Union  Nat.  Bank  vs.  Chapman,  21;  23. 
United  States  vs.  Guiteau,  100. 


118  TABLE  OF  CASES 

United  States  S.  &  L.  Co.  vs.  Beckley,  57;  63;  66. 
Usher  vs.  R.  R.  Co.,  13;  17. 


Vawter  vs.  R.  R.  Co.,  13. 
Vermont  Bank  vs.  Porter,  21;  47. 

W 

Walling  vs.  Grocery  Co.,  22;  47. 

Washington  N.  B.  &  L.  Ass'n.  vs.  Pifer,  67. 

Weinstein  vs.  Freyer,  67. 

Whiston  vs.  Stodder,  67. 

Wilson  vs.  Cook,  78;  81;  82. 

Wolf  vs.  Burke,  21;  22;  23;  47. 

Wooden  vs.  R  R.  Co.,  13;  19. 


INDEX. 

[BEFEBENCES  ABE  TO  THE  PAGES.] 

ACTS; 

Jurisdiction  of,  33. 

COMITY; 

Basis  of,  2. 
Definition,  1. 

CONFLICT  OF  LAWS; 
Definition  of,  22. 

CONTRACTS; 

Capacity  to  contract,  governing  law,  26. 

Comity,  application  to,  37. 

Covenants,  personal,  governing  law,  34. 

real,  governing  law,  34. 
Discharge  of,  governing  law,  27. 
Insurance  contract,  locality  of,  25. 
Leases,  governing  law,  35. 
Lex  loci  contractus,  definition  of,  25. 
Lex  loci  rei  sitae,  definition  of,  32. 
Lex  loci  solutionis,  definition  of,  30. 
Locality  of,  24. 
Mortgages,  35. 

Public  policy  in,  definition  of,  41. 
Rights  of  parties  to,  governing  law,  2L 
Trust  deeds,  governing  law,  35. 

CRIMES; 

Comity,  application  of,  to,  100. 
Conspiracy,  locality  of,  101. 
False  pretenses,  locality  of,  103. 
Interstate  Commerce,  effect  on  State,  106. 
Jurisdiction  to  prosecute,  101. 
Larceny,  locality  of,  101. 

119 


120  INDEX 

Locality  of,  101. 

National  Motor  Vehicle  Theft  Act,  effect  on  State,  106. 

DEATH  ACTIONS; 

Comity,  application  of,  to,  15. 
Locality  of,  13. 

Remedies  of  parties,  governing  law,  13. 
Rights  of  parties,  governing  law,  13. 
Transitory  action,  is,  13. 

INTEREST; 

Comity,  application  of,  to,  61. 

Mortgage,  as  a  security,  governing  law,  60. 

Note,  locality  of,  58. 

Payment  of  note,  governing  law,  59. 

Rate  of  interest,  governing  law,  57. 

Stipulated  law,  validity  of  clause  for,  57. 

Usury,  governing  law,  58. 

LAWS; 

Local  operation  of,  1. 

LEGITIMACY; 

Adoption,  governing  law,  88. 
Comity,  application  of,  to,  93. 
Domicile  of  infant,  locality  of,  89. 
Legitimacy,  governing  law,  88. 
Lex  domicilii,  definition  of,  90. 
Personal  rights,  governing  law,  89. 
Property  rights,  governing  law,  92. 
Right  of  inheritance,  governing  laW,  92. 
Status,  governing  law,  89. 

MARRIAGE; 

Capacity  to  marry,  governing  law,  78. 
Comity,  application  of,  to,  79. 
Disability  in,  definition  of,  82. 
Domicile  of  parties,  locality  of,  86. 
Form  of  Contract,  governing  law,  78. 
Lex  Celebrationis,  definition  of,  78. 
Penalty,  definition  of,  82. 
Personalty,  marital,  governing  law,  85. 
Public  policy,  in,  81. 


INDEX  121 


Realty,  marital,  governing  law,  84. 
Validity  of,  governing  law,  77. 

PENAL  ACTIONS; 

Comity,  application  of,  to,  110. 
Penal  Actions,  definition  of,  108. 

locality  of,  108. 
Torts,  distinction  between,  and,  109. 

PERSONS; 

Jurisdiction  of,  32. 

PUBLIC  POLICY; 
Definition  of,  3. 

REMEDIES; 


Attachment,  governing  law,  49. 

Comity,  application  of,  to,  48. 

Evidence,  rules  of,  pertain  to,  47. 

Forms  of  action,  relate  to,  47. 

Frauds,  Statute  of,  governed  by  law  of,  47. 

Limitations,  Statute  of,  is  part  of,  47. 

Pleading,  rules  of.  regulated  by  law  of,  48. 

Practice,  subject  of,  pertains  to,  48. 

Remedies,  in  contract,  governing  law,  47. 

Stockholders  Action,  remedy,  governing  law,  55. 

Suretyship,  remedy,  governing  law,  52. 


SALES; 


Chattel  mortgage,  locality  of,  68. 

Comity,  application  of,  to,  72. 

Locality  of,  68. 

Original  Parties,  law  governing  rights  of,  68. 

Removal  of  property  by  consent  or  agreement,  affect  of,  67. 

Third  parties,  law  governing  rights  of,  67. 


TORTS; 


Comity,  application  of,  to,  7. 

Contributory  negligenca,  governing  law,  11. 

Defenses,  meritorious,  governing  law,  11. 

technical,  governing  law,  11. 
Ejectment,  locality  of,  5. 


122  INDEX 

Lex  delicti,  definition  of,  9. 
Lex  fori,  definition  of,  9. 
Local  action,  definition  of,  5. 

jurisdiction  in,  5. 
Locality  of,  8. 

Remedies  of  parties,  governing  law,  5. 
Revival  of  tort,  governing  law,  10. 
Rights  of  parties,  governing  law,  5. 
Transitory  Action,  definition  of,  5. 

jurisdiction  in,  5. 

WILLS; 

Comity,  application  of,  to,  94. 
Construction  of,  governing  law,  95. 
Election,  right  of,  governing  law,  95. 
Personal  property,  will  of,  governing  law,  95. 
Public  policy  in,  96. 

Real  property,  will  of,  governing  law,  95. 
Revocation  of,  governing  law,  95. 
Validity  of,  governing  law,  95. 


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